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HomeMy WebLinkAbout91-516 MortonDear Mr. Morton: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 19, 1991 Mr. John D. Morton 91 -516 412 Hunting Creek Road Canonsburg, PA 15317 Re: Former Public Employee, Section 3(g), Pennsylvania Department of Environmental Resources, Bureau of Water Quality Management, Chief of Permits Section. This responds to your letter of January 11, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon your employment following termination of service with the Pennsylvania Department of Environmental Resources. Facts: As Chief of the Permits Section in the Bureau of Water Quality Management of the Pittsburgh Regional Office of the Pennsylvania Department of Environmental Resources (DER), you have requested advice from the State Ethics Commission regarding any restrictions under the Ethics Law upon your employment with private industry following termination of service with DER. You have submitted your job description for your current position (classified as a Sanitary Engineer IV position), which job description is incorporated herein by reference. You have been in this position since March 1985. You state that your position involves directing, supervising, and planning the work of sanitary engineers to prepare permits for issuance. You do not have the authority to issue permits or final Bureau policies, technical guidance or regulations, although you do contribute to their development. Your job description indicates that you are responsible for supervising and assigning work to a regional staff of engineers and hydrogeologists in the review, evaluation and issuance of NPDES and Bureau of Water Quality Management permits for application to discharge industrial waste and non - municipal sewage to streams of the Commonwealth. You are responsible for the review and recommended approval or denial of NPDES industrial Mr. John D. Morton Page 2 waste and non - municipal sewage permits, as well as Water Quality Management Part II industrial waste and non -coal mining permits. You are responsible for establishing technology based effluent limits for NPDES permits and you are responsible for industrial waste permit transfer and cancellations. You coordinate the preparation of Consent Order and Agreements, when applicable, and the preparation of water pollution reports on treated industrial waste discharges. You are required to be familiar with EPA regulations concerning the discharge of industrial waste, which includes researching current EPA Development Documents and guidelines for the primary and secondary industries and the current rules and regulations of the Department of Environmental Resources for in- stream water quality criteria. Your work involves interpreting assignments, rules, regulations, policies and procedures for employees and meeting with facility operators, industrial representatives, and the public to explain inspections, investigations, enforcement, permits and other activities. Your work also includes planning and organizing the work of the Permits Section, assigning work, determining work priority and work flow, and performing numerous duties related to personnel. You directly manage the activities of the Permits Section engaged in the regulation of activities to ensure compliance with Water Quality Management Rules and Regulations. You may be asked to respond to emergency situations, such as chemical spills, fish kills and flood disasters to assist in clean -up operations or damage assessments. You are additionally responsible for providing technical expertise on problem cases and testifying as an expert witness and /or material witness before the Environmental Hearing Board or judicial tribunals. You are responsible for numerous other duties set forth more fully in the incorporated job description. You acknowledge that you are not to represent a person on any matter with the particular governmental body with which you were associated for one year after leaving that body, and you cite Section 3(e) of the Ethics Act. It is assumed that you intended to cite Section 3(g) in this regard. You pose specific inquiries as to whether this prohibition includes all of DER or only the Bureau of Water Quality Management, and whether you may work on permit applications, permit appeals, or other items to be reviewed by DER if you do not make it known to DER that you have prepared or assisted in the preparation of the work item. You state that your intent is not to deceive DER but only to insure that such work would not receive preferential treatment if it were to be known that you worked on it. Finally, you specifically inquire whether the Ethics Act would be interpreted differently concerning your employment with private industry and your relationship with DER if you were either involuntarily furloughed or took a voluntary furlough. Mr. John D. Morton Page 3 Discussion: As Chief of the Permits Section in the Bureau of Water Quality Management of the Pittsburgh Regional Office of DER, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. Section 402; 51 Pa. Code Section 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. Initially, to answer your request the governmental body with which you have associated while working with DER must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. Mr. John D. Morton Page 4 In applying the above definition to the instant matter, we must conclude that the governmental body with which you have associated upon termination of public service would be DER, including but not limited to the Bureau of Water Quality Management. Thus, with regard to your initial specific inquiry, the restrictions of Section 3(g) of the Ethics Law would in your case include all of DER and not merely the Bureau of Water Quality Management. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with DER, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DER, including but not limited to the Bureau of Water Quality Management. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under Mr. John D. Morton Page 5 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you have associated is DER. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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 governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; Mr. John D. Morton Page 6 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. With regard to your second specific inquiry, you may, assist in the preparation of any documents presented to DER so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DER. Once again, however, the activity in this respect should not be revealed to DER. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DER to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. With regard to your third and final specific inquiry, the Ethics Law would not be interpreted differently concerning restrictions upon your employment following termination of service with DER if you were either involuntarily or voluntarily furloughed. Section 3(g) of the Ethics Law regards public officials or public employees who leave the governmental body with which they have been associated. Section 3(g) does not provide exceptions for circumstances involving an involuntary or voluntary furlough. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference Mr. John D. Morton Page 7 is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Conclusion: As Chief of the Permits Section in the Bureau of Water Quality Management of the Pittsburgh Regional Office of the Pennsylvania Department of Environmental Resources (DER), you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DER, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is DER, including but not limited to the Bureau of Water Quality Management. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Vincent J. Dopko, Chief Counsel