Loading...
HomeMy WebLinkAbout88-503 OkrutnySTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 3, 1988 ADVICE OF COUNSEL Mr. Mark S. Okrutny 128 Maple Avenue Apartment #1 Pittsburgh, PA 15218 Re: Former Public Employee; Section 3(e), Department of Environmental Resources 88 - 503 Dear Okrutny: This responds to your letter of December 23, 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: You state that you are currently employed as a Sanitary Engineer for the Bureau of Waste Management, hereinafter Bureau, in the Department of Environmental Resources, hereinafter DER. You further state that your primary job function is to review permit applications for landfills. You note that you plan to resign from your position in Janaury of 1988 and accept an engineering position with Westinghouse Corporation. You conclude by seeking guidance under the Ethics Act regarding the types of professional contacts which you may make with DER, other state agencies and past clients following the termination of your employment with DER. From your job description /specification, which is incorporated herein by reference, your job requires both knowledge and application in the area of environmental pollution control as well as solid waste management relative to public health. Your specific duties and responsibilities in your position are to review all treatment, storage and disposal permit applications, to inspect facilities for new site construction, to inspect existing facilities to insure compliance with plans and regulations, to consult with applicants, engineers and other interested parties regarding solid waste management, to attend meetings relating to the area of solid waste management, to appear as an expert legal witness for the Bureau regarding engineering aspects of solid waste management, to receive and provide training, to assist the Bureau in developing standard forms and modules for permit processing, to coordinate Hydrogeologist, Soil Scientist and Engineering reviews, to write permits and to perform such other miscellaneous dutes as required. Mr. Mark S. Okrutny February 3, 1988 Page 2 Discussion: As a Sanitary Engineer 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 reviewed 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. 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 reviewed. In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing Opinion, 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 the Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau. 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 employers vis-a-vis the Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau. 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 Mr. Mark S. Okrutny February 3, 1988 Page 3 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 Opinion, 83 -014; Zwikl Opinion, 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 Bureau), including, but not limited to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau 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 Bureau in relation to legislation, regulations, etc. See Russell Opinion, 80 -048 and Seltzer Opinion, 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 the Bureau, constitutes an attempt to influence your former governmental body. See Ki l a reski Opinion, 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 the Bureau, is not prohibited as "representation." See Kotalik Opinion, 84 -007. Mr. Mark S. Okrutny February 3, 1988 Page 4 You may, assist in the preparation of any documents presented to the Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau to secure information which is available to the general public. See Cutt Opinion, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Bureau your representation of, or work for your new employer. 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 Opinion, 80 -056 and Beaser Advice, 81 -538. Additionally, it i would prohibit any publ position of employment understanding that the working for his former 65 P.S. §403(b). s noted that Section 403(b) of the State Ethics Act is employee or public official from accepting a if said position has been offered based upon the official conduct of the employee or official, while governmental body, was influenced by such offer. See Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, regulation, or ordinance or other code of conduct other than the Ethics Act has not been considered. Conclusion: As a Sanitary Engineer, 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 the Bureau. 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. Mr. Mark S. Okrutny February 3, 1988 Page 5 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 will 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. Si ncerely, 1 Vincent J. Dopko General Counsel