HomeMy WebLinkAbout88-641 MemonAltaf A. Memon, Ph.D., C.H.M.M.
Project Scientist
Buchart Horn, Inc.
55 South Richard Avenue
P.O. Box M -55
York, PA 17405 -7055
Dear Memon:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 26, 1988
88 -641
Re: Former Public Employee; Section 3(e), Sanitary Engineer IV,
DER
This responds to your letter of September 9, 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 advise that you have worked for the Department of
Environmental Resources (DER), since May 7, 1981 until you
resigned effective July 6, 1988. During that time you advise
that you held the position of Sanitary Engineer I, II in the
Pittsburgh Regional Office from May 7, 1981 to October 6, 1982,
Sanitary Engineer III in the Harrisburg Central Office from
October 7, 1982 through June 13, 1984, Sanitary Engineer III in
the Central Harrisburg Office from June 14, 1984 through February
19, 1986, and finally Chief of the Systems Development and
Evaluation Unit, Systems and Program Implementation Section,
Division of Water Quality, in the Harrisburg Central Office from
February 20, 1986 until the date of your resignation. You advise
that you are currently employed by Buchart -Horn, Inc. of York and
that your work involves dealing with different units of DER and
other state agencies. You conclude by requesting advice from the
State Ethics Commission as to the nature and length of the
restrictions that would be imposed upon you in dealing with DER
and other state agencies.
Altaf A. Memon, Ph.D.
October 26, 1988
Page 2
A review of your job description which is incorporated
herein by reference indicates that you had the following duties
and responsibilities as Chief of the Systems Development and
Evaluations Unit in the Comprehensive Planning Section:
to plan and develop new Water Quality Management analytical
methods for application to Water Quality Management planning and
decision making; to recommend modifications and revisions to
existing Water Quality Management planning data management
systems and computerized analytical procedures; to carry out
specific technical work activities and projects relative to the
Water Quality Management planning program; to provide guidance
and assistance in the preparation and maintenance of project work
statements, schedules and budgets; to review proposed legislation
and regulations relative to Bureau of Water Quality Management;
to coordinate activities relative to the acquisition and use of
computer hardware and software; to coordinate activities with
other bureaus and other divisions within the Bureau of Water
Quality Management; to perform computer systems analysis and
programming; to supervise the staff and the Program Systems and
Evaluation Unit and perform such .other duties as are required in
your position.
Discussion: As a Sanitary Engineer IV and System Unit Chief 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 S1.1.
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. S403.
Altaf A. Memon, Ph.D.
October 26, 1988
Page 3
Initially, to answer your request the "governmental body"
with which you were associated while working 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 Kure v. 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 Bureau of Water Quality Management, hereinafter 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 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
Altaf A. Memon, Ph.D.
October 26, 1988
Page 4
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 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
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
Bureau, is not prohibited as "representation." See Kotalik,
Opinion 84 -007.
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.
Altaf A. Memon, Ph.D.
October 26, 1988
Page 5
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 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.
S403(b).
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 a Sanitary Engineer IV and Unit Chief 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. Lastly, 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.
This letter is a public record and will be made available as
such.
Altaf A. Memon, Ph.D.
October 26, 1988
Page 6
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 S2.12.
Sincerely,
1
Vincent J. Dopko,
General Counsel