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HomeMy WebLinkAbout88-671 VolleroDear Mr. Vollero: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 28, 1988 Mr. David E. Vollero 88 -671 4611A Florence Avenue Mechanicsburg, PA 17055 :.e: Former Public Employee; Section 3(e), DER, Environmental Protection Specialist This responds to your letter of October 19, 1988, in which you requested advice from the State Ethics Commission. I:iaue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the DER. Facts: You advise that from May, 1985 until January, 1987 you were employee by DER as a Mining Specialist in the Greensburg District Cffice with no dealings with the York County Solid Waste and Refusal Authority (YCSWRA). Thereafter, you note from January, 1987 you began working as a Solid Waste Specialist Trainee in the Harrisburg Regional Office, hereinafter Office, at which you began in pecting the Hopewell Landfill which is owned and operated by Y 3WRA together with other facilities in York County. You note that in December, 1987 you were promoted to a Trainee status as a Solid Waste Specialist and continued in those dutie3 since 1987. Thereafter, in May, 1988, you advise that you were promoted to an Environmental Protection Specialist and that although technically in the Central Office your duties were conducted out of the Office. In that position you served as a Project Officer for the Superfund sites in the Region, one of which was the Hopewell Landfill run by YCSWRA. You then state that the program is in the process of decentralization and that you never in your position took any formal action with regard to that site in your capacity as a Project Officer. You advise that in November, 1988, you will begin employment with the YCSWRA and that your duties will include the day -to -day management of the Hopewell Landfill, contract oversight, monitoring compliance with permits at the landfill as well as LCSWRA'J municipal waste incinerator which is currently u, 1 construction t _;ether with Mr. David E. Vollero December 28, 1988 Page 2 other duties. You conclude by requesting advice from the State Ethics Commission as to what potential conflict could arise in your new employment especially as it relates to possible dealings with representatives from the Bureau of Waste Management. From your job description /classification specification, which is incorporated herein by reference, it appears that your duties and responsibilities consist of the following: to participate in the development and review of procurement documents and other activities relative to National Priorities List Superfund sites; to oversee and manage contractors retained by DER at Superfund sites; to serve as a remedial planning manager at Superfund sites; to advise and perform liaison work with Regional DER staff as to Superfund sites; to participate in negotiations of certain Superfund contracts and agreements; to participate in negotiation of contracts with private consultants and contractors as to remedial actions at Superfund sates; to attend public meetings, provide liaison and coordination with EPA project officers as to Superfund sites; to provide evaluation of certain individual Superfund sites; to participate in the evaluation of individual sites for the implementation of Immediate Removal Superfund actions; to participate in the Hazard Ranking System of sites for Superfund candidacy and to perform such other duties as required. Discussion: As a Environmental Protection 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, procurimment, planning, inspecting or other activities where the economi: impact is greater than de minimus on the interests of another peron. Co- .sequently, upon termination of this employment, you would become a "forcer 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 forger official or public employe shai3 repres.nt a person, with or without compensation, on any matter before the Mr. David E. Vollero December 28, 1988 Page 3 governmental body with which he has been associated for one year after he leaves that bod 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- 0.0. "gee also Kury v. Commonwealth of Pennsylvania, State Ethics CommisEj.on, 435 A. 2d 940 (1981) . From the description and analysis of your duties and re :pons_bilities and based upon the facts outlined above, you:° jurisdiction, responsibility, influence and control appears to have beer the Office. Thus, the "governmental body" with which yor have been "associated" upon the termination of your employment would be the Office. Therefore, within the first year er you would leave DER, Section 3(e) of the Ethics Act would app.v 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: Mr. David E. Vollero December 28, 1988 Page 1 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 i,ad or contract proposals which are signed by or contain the name of the former public official or public employee. 51 Pa. Code 51.1. 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; 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 Did, if submitted to or reviewed by the Office, constitutes an attempt to influence your former governmental body. SE3 Kilareski, Opinion 80 -054. Therefore, within the first yea:1. 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. Mr. David E. Vollero December 28, 1988 Page 5 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 entiti.)s or to otherwise make known to the Office your representation of, or work :.or your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negot or renego:ia 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 St Ethics Act would prohibit any public employee or public officio- from accepti.ig a position of employment if said position 'las been offered based upon the understanding that the of "icial conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). Lastl -r„ the propriety of the proposed conduct has only k n addressed under the Ethics Act; the applicability of any oliF statute, code, ordinance, regulation or other code of ccn(t:t other than the Ethics Act has not been considered in that the 7dl not involve an interpretation of the Ethics Act. Conclusion: As a Environmental Protection Specialist, you a::r be considered a "public employee" as cleaned in the Ethics Zct. Upon termination of your service with DER, you would bEcome a "former public employee" subject to the restrictions imposaf Icy Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics .lot as outlined above. Your governmental body for the purpo6e of the one year representation restriction is the Office. Lastly, the propriety of the proposed conduct his only been addresse3 under the Ethics Act. Mr. David P. Vol lero December 28, 1988 Page 6 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 52.12. L.cerely, Vincent i. Dopko, General C.,unsel