HomeMy WebLinkAbout88-600 BillingsMr. Wayne H. Billings
R.D. #2, Box 140
Cogan Station, PA 17728
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 6, 1988
88 -600
Re: Former Public Employee; Section 3(e), Environmental Chemist
I, DER
Dear Mr. Billings:
This responds to your letter of June 2, 1988, 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 an
Environmental Chemist I with the Bureau of Waste Management
in the Williamsport Regional Office, hereinafter Office, with the
Department of Environmental Resources, hereinafter DER. After
advising that you contemplate leaving state service to take a
position with a private consulting firm, you state that yo'ir
duties in your new position would consist of providing consulting
services to industry, local governments and landfill authorities
regarding the proper methods of waste disposal and the clean up
and disposal of spills of industrial residue and hazardous waste.
You conclude by requesting advice from the State Ethics
Commission as to what restrictions would be imposed upon your
conduct during the one year period after your termination of
service with DER.
You have included a copy of your most recent job description
which is incorporated herein by reference. Your duties and
responsibilities as an Environmental Chemist I consist of the
following: reviewing and participating in the review of permit
applications; participating in the evaluation of existing license
facilities; participating in administrative conferences;
Mr. Wayne H. Billing'
July 6, 1988
Page 2
determining risk potential as to exposure to both common and
exotic chemicals and formulations; cooperating in emergency
responses to pollution accidents and other hazards; evaluatinc
industrial treatment facilities and disposal processes;
evaluating hazardous waste and industrial residuals; preparing or
evaluating sampling and testing programs; utilizing various
types of test equipment; operating personal computers and da'e,
input terminals and conducting evaluations and calculation
providing interpretations of regulations and providing technir31
trainings and performing such other miscellaneous duties as a
required by your position.
Discussion: As a Environmental Chemist I for DER, you are 33
considered a "public employee" within the definition of th%', erm
as set forth in the Ethics Act and the regulations et 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 employe.
shall represent a person, with or withou.:
compensation, on any matter before th3
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 PER 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 Kure v. Commonwealth of Pennsylvania, State Ethics
Commission, 435 A.2d 940 (1981).
Mr. Wayne H. Billings
July 6, 1988
Page 3
From the description and analysis of your duties and
responsibilities and based upon the facts outlined above, your
jurisdiction, responsibility, influence and control ap2ears to
have been the Office. Thus, the "governmental body" with which
you have been "associated" upon the termination of your
employment would be the Office. Therefore, within_the first year
after you would leave DER, Section 3(e) of the Ethics Act wouh
apply and restrict your "representation" of persons or new
employers vis -a -vis the Office.
The Ethics Act would not affect your ability to appear
before agencies or entities other than with respect to the
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, Opinion 83 -014; Zwikl, Opinion 85 -004.
In respect to the one year representation 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 employee.
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 Office),
including, but not limited to, negotiations or renegotiations on
contracts with the Office;
Mr. Wayne H. Billing
July 6, 1988
Page 4
2. Attempts to influence the Office;
3. Participating in any matters before the Office over
which you had supervision, direct involvement, or responsibility
while employed by DER;
Lobbying, that is representing the interests of any
person or employer before the Office 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 r4
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 Office, constitutes an
attempt to influence your former governmental body. See
Kilareski, 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
Office, is not prohibited as "representation." See Kotalik,
Opinion 84 -007.
You may, assist in the preparation of any documents
presented to the Office so long as you are not identified as the
preparer. You may also counsel any person regarding that
person's appearance before the Office. Once again, however, your
activity in this respect should not be revealed to the Office.
Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the
Office 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 Office 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.
Section 3(b) of the Ethics Act provides:
(b) No person shall offer or give to a public
official or public employee or candidate for
public office or a member of his immediate
family or a business with which he is
Mr. Wayne H. Billings
July 6, 1988
Page 5
associated, and no public official or public
employee or candidate for public office shall
solicit or accept, anything of value,
including a gift, loan, political
contribution, reward, or promise of future
employment based on any understanding - that
the vote, official action, or judgment of the
public employee or candidate for public
office would be influenced thereby. 65 P.S.
403(b).
Under "Section 3(b) of the Ethics Act cited above, which a
public official or employee must observe, a public official or
employee must neither offer nor accept anything of value on the
understanding or with the intention that his judgment would be
influenced thereby. It is assumed such a situation does not
exist here. This Section is referenced not to indicate that any
such activity has been or will be undertaken but in an effort to
provide a complete response to your inquiry.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act; the applicability of any other
statute, code, ordinance, regulation or other code of conduct
other than the Ethics Act has not been considered in that they do
not involve an interpretation of the Ethics Act.
Conclusion: As an Environmental Chemist I, 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 Office. The propriety of the
proposed conduct has only been addressed under the Ethics Act.
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.
r1r. Wayna H. Billings
July 6, 1988
Page 6
such.
This letter is a public record and will be made available as
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 former 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.
Vincent J. Dopko,
General Counsel