Loading...
HomeMy WebLinkAbout88-643 FahySTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 26, 1988 88 -643 Ms. Helen K. Fahy Consultant R.D. #2, Box 6 Spring Mills, PA 16875 Re: Former Public Employee; Section 3(e), Sanitary Engineer III, DER Dear Ms. Fahy: This responds to your two letters of September 16, 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 DER relative to providing consulting grant management services to a borough authority and as a consultant subcontractor to a firm that would be submitting an operation and maintenance manual to DER Regional Office. Facts: In your two letters you advise that between July 24, 1984 and August, 1986, you served as a Sanitary Engineer II and were promoted to a number III position in the Engineering Section in the Division of Permits and Compliance, Bureau of Water Quality Management in the Central Office of Harrisburg. From August, 1986 through December 31, 1986, you state that you were a Sanitary Engineer II in the Permits and Grants Section of the Bureau of Water Quality Management in the Williamsport Regional Office. You then advise that you served as a Sanitary Engineer III in the Planning Section in the Bureau of Water Quality Management in the Williamsport Regional Office from January, 1987 to April 22, 1988. You note at one point that there was a Bellefonte Grant case but that a co- worker worked on the project who you helped on two occasions concerning said project. In that regard you indicated that you made no contact with Bellefonte nor their engineer and that your co- worker wrote all the correspondence. You then note that you had a second contact concerning a review of Bellefonte's Ordinance but that you gave Ms. Helen K. Fahy October 26, 1988 Page 2 that to submitted relates t quoted as your co- worker after a quick review. You have in your letter the following job description as it o your last position that you held with DER which is follows: "I was a Sanitary Engineer III in the Planning Section of the Bureau of Water Quality Management at the Williamsport Regional Office. I was responsible for seeing that principles of comprehensive water quality management were followed and for determining acceptable discharge limits that would protect the uses of the receiving stream. My main geographic responsibility was a portion of the North Branch of the Susquehanna River Basin and a portion of the West Branch of the Susquehanna River Basin. These watersheds cover all or part of Centre, Clinton, Potter, Tioga, Lycoming, Bradford and Sullivan Counties. I reviewed Planning Modules for Land Development, feasibility studies, and preliminary reports prepared for municipal and private installations to ensure that the scheme proposed for treating the wastewater fit into the regional and local plan for the area and that the degree of treatment proposed would not cause an adverse effect on the receiving stream. I also initiated, coordinated and reviewed Official Sewerage Plan update studies. I reviewed the Annual Reports submitted by sewage treatment plant permittees under Chapter 94 of the Department's Rules and Regulations to determine if hydraulic or organic overloads exist. If an overload existed or was projected, I required the permittee and to prepare plans for correction of the problems. I developed water quality effluent limits for all sewage, industrial waste, and mine drainage permit applications assigned to me which required NPDES permits for surface water discharges. Through the use of stream modeling techniques, I ensured that the effluent limits assigned would maintain the water quality of the receiving stream above the adopted stream standards. hydraulic receiving Section 4 I conducted stream surveys data for establishing waste streams. I also reviewed requests 01 of the Clean Water Act." to gather chemical and assimilative capacity of for certification under Ms. Helen K. Fahy October 26, 1988 Page 3 You advise that you have accepted employment as a consultant providing grant management services to Bellefonte Borough Authority after you left state service. After setting forth your new job description as grant manager, you indicate that you do not get involved in any negotiations of contracts with the Williamsports Regional Office of DER and that you can not influence said office because the Bellefonte Grant was awarded back in 1984 and is an preexisting contract. You then note that the EPA Grants program has definitive guidelines and that the DER Regional Office are reviewed by the Central Office staff and by the EPA. You assert that the DER Regional Office employee can not show favoritism or exert influence as to a DER Regional Office employee. You state that you do not have any direct involvement, supervisory or personal responsibility over any matters concerning Bellefonte's Grant that you would be participating in before the Williamsport Regional Office and you do not do any lobbying. In your second letter you state that you are a Woman Owned Business Enterprise (WBE) subcontractor to an engineering contractor, Gwin, Dobson and Foreman, Inc., for which you are writing an Operation and Maintenance Manual for their submittal to the DER Williamsport Office. You state that your name will not appear on the document and you will not have any contact with the Regional Office concerning the manual. In both of the above situations, you request advice under the Ethics Act regarding your new employment as a consultant to the Bellefonte Borough Authority and as a subcontractor to a firm that will be submitting an operations manual to the DER Williamsport Regional Office. Discussion: As a Sanitary Engineer III 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. S402; 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: Ms. Helen K. Fahy October 26, 1988 Page 4 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 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 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 in the Williamsport Regional Office, hereinafter Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be 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 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 ot employment in which you may engage, following your departure from DER. It is noted, however, that the conflicts of interest law 1s 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. Ms. Helen K. Fahy October 26, 1988 Page 5 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 S1.1. 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. Ms. Helen K. Fahy October 26, 1988 Page 6 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. In the instant matter, the Ethics Act would not preclude you from new employment as a consultant to provide grant management service to the Bellefonte Borough Authority subject to the limitations as noted above. Similarly, the Ethics Act would not preclude you from employment as a consultant as a WBE subcontractor to the engineering firm which would submit the operations and maintenance manual that would not contain your name on the document subject to the limitations as outlined above. 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). 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 III,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 Ms. Helen K. Fahy October 26, 1988 Page 7 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. 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. S ncerely, 1 Vincent T. Dopko, General Counsel