Loading...
HomeMy WebLinkAbout88-668 RussellMr. Mark H. Russell R.D. #2, Box 4020 Country Club Drive Ellwood, PA 16117 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 19, 1988 88 -668 Re: Former Public Employee; Section 3(e), DER, Solid Waste Specialist Dear Mr. Russell: This responds to your letter of November 13, 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: After stating that you are currently employed by the Department of Environmental Resources, hereinafter DER, in the Bureau of Waste Management, hereinafter BWM, Operations Sections, as a Solid Waste Specialist in the Beaver Falls District Office, hereinafter Office, since October 1, 1981, you state that the Office is located in the ten county Pittsburgh Region of DER. After noting that from October, 1981, through November, 1981, your field consisted of all of Beaver County, you then advise that from November, 1982 to the present your field area has consisted only of the northern portion of the county. You state that as a Solid Waste Specialist you are responsible for determining compliance with the Pennsylvania Solid Waste Management Act as to industries within your field area. You state that since November, 1982 compliance of industries with the BWM program in the southern portion of the county has been handled by another solid waste specialist and that you have no responsibility in that area. After advising that BWM permit application processing is not handled out of the Operations Section but rather out of the BWM Facilities Section in the Regional Office in Pittsburgh, you state that other DER Mr. Mark H. Russell December 19, 1988 Page 2 environmental programs are handled by other Bureaus personnel and that you have no responsibility as to these programs. You then indicate that you may accept employment with Babcock and Wilcox in its Tubular Products Division as head of the environmental control department handling all environmental programs for their plants in three states. You then advise that you have inspected two Babcock and Wilcox plants located in your field area and that prior to November, 1982 you also inspected the plant in the southern part of the county. After referencing Section 3(e) of the Ethics Act, the terms "represent" and "governmental body" and the citation of several opinions of the Commission, you pose the following eight questions: "1. How does the fact that all of the BWM submissions and files are available to the general public effect these issues? 2. Would I be precluded from representing B &W before the BWM regarding their plant -in southern BC, in so far as that plant has not been in my field area and I have not been responsible for it since November 18, 1982? 3. Would I be precluded from representing B &W before BWM regarding the one plant within my field area which has ben idle, insofar as I have not inspected it or otherwise been involved with it for several years? 4. Would I be precluded from administering a finalized and approved hazardous waste site closure plan for a plant in northern BC; a plan approved by others including members of the BWM Facilities Section in the Pittsburgh Office, (similar to administering an existing contract in Larson 86 -009; Dalton 80 -056; Beaser 8 -538)? 5. Would I be precluded from negotiating such a plan or negotiating changes in the existing plan? 6. Would my presence while a DER employee during some of the negotiations process of the above closure plan affect your decision on this issue, even though I did not make any decision nor have direct responsibility for the approval of the plan? (Though it should be pointed out that I was consulted on the matter.) 7. a) Would I be precluded from accompanying a BWM inspector during an inspection of B &W plants? b) If so, would this restriction apply to both the plants in northern and southern BC? Mr. Mark H. Russell December 19, 1988 Page 3 8. Would I be precluded from submitting permit applications or other documents under my signature or appearing before the BWM Facilities Section given that they are located in a different office and I had no "influence, responsibility, supervision or control" of the BWM Facilities Section, (Larson 86- 009) ?" After enclosing a photocopy of the classification specification for a Solid Waste Specialist which is incorporated herein by reference, you request advice from the Ethics Commission as to the restrictions under Section 3(e) of the Act and as specifically as to the questions which you have posed. Discussion: As a Solid Waste Specialist 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 §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 (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 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). Mr. Mark H. Russell December 19, 1988 Page 4 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 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 would 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, .. ....... ..'.,..... __? -,.a.... - n, 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 as 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 Office), including, but not limited to, negotiations or renegotiations on contracts with the Office; Mr. Mark H. Russell December 19, 1988 Page 5 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; 4. 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 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 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. Turning now to the eight specific questions that you have posed, each question will be answered seriatim. As to the matter of the public nature of submissions, this does not affect the limitation of Section 3(e) since the restriction is imposed upon your representation of your new employer; the fact that the submissions or files are public has no relevance thereon. As to Mr. Mark H. Russell December 19, 1988 Page 6 your second and third inquiries concerning Babcock & Wilcox in their plant in either the southern portion of the county or in your area which has remained idle and has not been inspected by you, the representation restriction does not relate to one plant versus another plant; it relates to representing your employer, that is, the entity Babcock & Wilcox before your governmental body. As to your fourth inquiry, you would not be precluded from administering a finalized and approved hazardous waste site closure plan since you have stated that the plan would have already been approved out of the Pittsburgh Office which would not be considered your former governmental body as defined above. However, in the event that a dispute would arise as to the administration of that closure plan, Section 3(e) would preclude you from representing Babcock & Wilcox before your governmental body concerning the resolution of that dispute. Turning to your fifth inquiry, you would not be precluded from negotiating a plan or negotiating changes in an existing plan provided such negotiations would not be with your governmental body, that is, the Office. The sixth inquiry can not be addressed in this advice since any action on your part in the negotiating process would be past action which may not be addressed in a prospective advisory opinion mechanism. See 65 P.S. 407(9)(i)(ii). As to your seventh inquiry, you would be precluded from accompanying a BWM inspector during an inspection of a Babcock & Wilcox plant if that inspector came from your former governmental body, that is, the Office. As to your final inquiry, you would not be precluded from submitting applications or other documents under your signature provided they were submitted to offices which would be other than your former governmental body. Additionally, State Ethics Act would official from accepting has been offered based conduct of the employee governmental body, was §403(b). it is noted that Section 3(b) of the prohibit any public employee or public a position of employment if said position upon the understanding that the official or official, while working for his former influenced by such offer. See 65 P.S. 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 Solid Waste Specialist, 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 Mr. Mark H. Russell December 19, 1988 Page 7 "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. 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. 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 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. Sincerely, v Vincent J. Dopko, General Counsel