HomeMy WebLinkAbout87-651 CaputoMr. Kenneth Caputo, Jr.
7060 Scenic Knolls Drive
Bloomsburg, PA 17815
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
December 22, 1987
ADVICE OF COUNSEL
87 -651
Re: Former Public Employee; Section 3(e), DER
Dear Mr. Caputo:
This responds to your letter of November 28, 1987 , in which you
requested advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment following your termination of service with the
Department of Environmental Resources.
Facts: In your letter you state that you are currently employed in the
Department of Environmental Resources, hereinafter DER, wherein you started
your employment at the Williamsport Regional Office in January, 1981. At that
time you state you were the Facilities Specialist and had duties of reviewing
permit applications for completeness review, permit tracking, and conducting
Environmental Assessments for municipal and residual waste applications. You
further state that in September 1983, you were promoted to the position of
Hazardous Waste Coordinator in DER's Williamsport Regional Office, hereinafter
Regional Office, wherein your major duties included the regulation of
hazardous waste generators, treatment, storage and disposal facilities to
ensure compliance with the State and Federal statutes. You also state that
you served as a hazardous waste permitting coordinator between DER, EPA,
industry and the public at large. You note that Merck and Company, a
corporation in which you are considering employment, received a joint permit
from DER and EPA in August, 1985 for the operation of a hazardous waste
storage and incineration facility. In this regard you state that your role in
the permitting process was to conduct a completeness review of the initial
application and to coordinate the permitting activities with DER, EPA and the
local government officials. From June 1986 forward, you state that you have
served as the Solid Waste Regional Compliance and Monitoring Manager for the
Office. In this regard, you state that your duties involved the supervision
Mr. Kenneth Caputo, Jr,
December 10, 1987
Page 2
of a hydrogeoiogi st, compliance speci al i st and a field supervi sor for five
field inspectors, the duties of which consist of inspecting and enforceing
hazardous, municipal and residual waste facilities. You also state that Merck
and Company is permitted a hazardous waste facility and receives quarterly
inspections. You also note that your current duties consist of approving
enforcement actions against waste management facilities, investigating
complaints and providing policy and procedural direction to the field staff.
Lastly, you note that in September 1986, Merck and Company received a $500
penalty resulting from a manifest discrepancy. You state that you are
currently considering a position with Merck and Company and you anticipate
that your responsibilities there would consist of updating the existing DER
and EPA hazardous waste permits as required, inspecting the various hazardous
waste units to ensure compliance with applicable regulations, recordkeeping,
spill response, and sampling waste streams. You conclude by requesting what
restrictions the Ethics Act would impose upon you in working for Merck and
Company in light of your past employment with DER.
Discussion: As a Solid Waste Regional Compliance and Monitoring Manager for
DER, you are to be considered a "public employee" within the definition of
that term as set forth in the Ethics Act and the regulations of this
Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion .is based upon
your job description, which when revi ewed on an objective basis, indicates
clearly that you have the power to take or recommend official action of a
non - ministerial nature with respect to contracting, procurement, planning,
inspecting or other activities where the economic impact is greater than de
minimus on the interests of another person. See 65 P.S. §402; 51 Pa. Code
§1.1.
Consequently, upon termination of this employment, you would become a
"former public employee" subject to Section 3(e) of the Ethics Act. Section
3(e) of the Ethics Act provides that:
Section 3. Restricted activities.
(e) No former official or public employee shall represent
a person, with or without compensation, on any matter
before the governmental body with which he has been
associated for one year after he leaves that body.
65 P.S. 403.
Initially, to answer your request the "governmental body" with which you
were associated while working with DER must be identified. Then, the scope of
the prohibitions associated with the concept and term of "representation" must
be revi ewed. In this context, the Ethics Commission has previously ruled that
the "governmental body" with which an individual may be deemed to have
Mr. Kenneth Caputo, Jr.
December 22, 1987
Page 3
been associated during his tenure of public office or employment extends to
those entities where he had influence, responsibility, supervision, or
control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania,
State Ethics Commission, 435 A.2d 940 (1981).
From the description and analysis of your duties and responsibilities and
based upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been Regional Office. Thus, the
"governmental body" with which you have been "associated" upon the termination
of your employment would be Regional Office. Therefore, within the first year
after you would leave DER, Section 3(e) of the Ethics Act would apply and
restrict your "representation" of persons or new empl oyers vi s -a -vi s Regional
Office.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Regional Office. Likewise, there is
no general limitation on the type of employment in which you may engage,
following your departure from DER. It is noted, however, that the conflicts
of interest law is primarily concerned with financial conflicts and violations
of the public .trust. The intent of the law generally is that during the term
of a person's public employment he must act consistently with the public trust
and upon departure from the public sector, that individual should not be
allowed to utilize his association with the public sector, officials or
employees to secure for himself or a new employer, treatment or benefits that
may be obtainable only because of his association with his former public
employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction the Ethics
Commission has promulgated regulations to define "representation" as follows:
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
submitting bid or contract proposals which are signed by
or contain the name of the former public official or
public employe. 51 Pa. Code 1.1.
The Commission, in its opinions, has also interpreted the term
"representation" as used in Section 3(e) of the Ethics Act to prohibit:
1. Personal appearances before the governmental body or bodies with
which you have been associated, (that is the Regional Office), including, but
not limited to, negotiations or renegotiations on contracts with the Regional
Office;
Mr. Kenneth Caputo, Jr.
December 22, 1987
Page 4
2. Attempts to influence the Regional Office;
3. Participating in any matters before Regional Office over which you
had supervision, direct involvement, or responsibility while employed by DER;
4. Lobbying, that is representing the interests of any person or
employer before the Regional Office in relation to legislation, regulations,
etc. See Russell, 80 -048 and Seltzer, 80 -044.
The Commission has also held that preparing and signing a proposal,
document or bid, or listing your name as the person who will provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
Regional Office, constitutes an attempt to influence your former governmental
body. See Ki 1 areski , 80 -054. Therefore, within the first year after you
leave DER, you should not engage in the type of activity outlined above. The
Commission, however, has stated that the inclusion of your name as an employee
or consultant on a pricing proposal," even if submitted to or reviewed by
Regional Office, is not prohibited as "representation." See Kotalik, 84 -007.
You may, assist in the preparation of any documents presented to the
Regional Office so long as you are not identified as the preparer. You may
also counsel any person regarding that person's appearance before the Regional
Office. Once again, however, your activity in this respect should not be
revealed to the Regional Office. Of course, any ban under the Ethics Act
would not prohibit or preclude you from making general informational inquiries
of the Regional Office to secure information which is available to the general
public. See Cutt, 79 -023. This, of course, must not be done in an effort to
indirectly influence oftiorewo�k otherwi se make
employeown to the Regional
Office your representation
Finally, the Commission has concluded that if you are administering an
existing contract as opposed to negotiating or renegotiating a contract, your
activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and
Beaser, 81 -538.
Lastly, your question has only been addressed under the Ethics Act; the
applicability tof beennconsideredregulation or code of , ordi
conduct other han
Mr. Kenneth Caputo, Jr.
December 22, 1987
Page 5
Additionally, it is noted that Section 403(b) of the State Ethics Act
would prohibit any public employee or public official from accepting a
position of employment if said position has been offered based upon the
understanding that the official conduct of the employee or official, while
working for his former governmental body, was influenced by such offer. See
65 P.S. §403(b).
Conclusion: As a Solid Waste Regional Compliance and Monitoring Manager, you
are to be considered a "public employee" as defined in the Ethics Act. Upon
termination of your service with DER, you would become a "former public
employee" subject to the restrictions imposed by Section 3(e) of the Ethics
Act. As such, your conduct should conform to the requirements of the Ethics
Act as outlined above. Your governmental body for the purpose of the one year
representation restriction is Regional Office. Lastly, the question you pose
has only been addressed under the Ethics Act; the applicability of any other
statute, code, ordinance, regulation or code of conduct other than the Ethics
Act has not been considered.
Further, should you terminate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests for the year following your termination of
service.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may request that the full Commission review this Advice.
A personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission w i l l be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
Sincerely,
tr.-u,)r)_ pc
Vincent J. Dopko
General Counsel