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HomeMy WebLinkAbout91-539 DetwilerMr. Scott D. Detwiler 218 East Broad St. West Hazleton, PA 18201 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 14, 1991 91 -539 Re: Former Public Employee, Section 3(g), Department of Environmental Resources, Bureau of Waste Management, Solid Waste Specialist. Dear Mr. Detwiler: This responds to your letter of March 1, 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 Department of Environmental Resources, Bureau of Waste Management. Facts: As a Solid Waste Specialist with the Department of Environmental Resources, Bureau of Waste Management, you will be leaving your present position with the Commonwealth of Pennsylvania to assume a position in private industry. A copy of the job classification specification for your present position with DER as Solid Waste. Specialist has been submitted to this Commission and is incorporated herein by reference. Your new position will be as Environmental Engineer at a facility which is regularly inspected by the Department of Environmental Resources (DER) for air, water and waste concerns. In the new position, you would be responsible for several environmental programs for the facility. You seek the advice of the Commission on the following specific questions: 1. As a "former public employee" with DER, Bureau of Waste Management, whether you would be permitted to accompany a Department inspector on facility inspections and /or provide requested documents and information to the inspector at the time of the inspection? Mr. Scott D. Detwiler Page 2 2. What, if any, involvement you may have with the Department in regards to your prior specific question? Discussion: As a Solid Waste Specialist for DER, Bureau of Waste Management, 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. 402; 51 Pa. Code 1.1. This conclusion is based upon the job classification specification, 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 were 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 Mr. Scott D. Detwiler Page 3 or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would be the Department of Environmental Resources (DER), including but not limited to the Bureau of Waste 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. 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 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you were associated is DER. Mr. Scott D. Detwiler Page 4 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: at 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; 2. Attempts to influence; Mr. Scott D. Detwiler Page 5 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. 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. 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 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. Turning to your specific inquiries, as a former public employee with DER, Bureau of Waste Management, you would not be permitted to accompany a Department inspector on facility inspections or to provide requested documents and information to the inspector at the time of the inspection. Such conduct would clearly fall within the specific definition of "represent" in Section 2 of the Ethics Law, 65 P.S. 5402, as well as the Commission's interpretation of that term as discussed above. The proposed activity would clearly constitute a personal appearance Mr. Scott D. Detwiler Page 6 before the governmental body as well as participating in a matter before the former governmental body as to acting on behalf of the new employer. Furthermore, an obvious concern would be the possibility that your association with DER in your former public employment could be used - even inadvertently - to secure for yourself or your new employer, treatment or benefits that may only be obtainable because of your association with your former governmental body. For example, an inspector could conduct a less vigorous inspection regarding your new employer based upon his familiarity with you, your abilities and /or experience as a former public employee. Given the specific prohibitions of Section 3(g) of the Ethics Law, as well as the Commission's interpretations of that section, you could not engage in any conduct which would constitute representation of your new employer before DER during the one year period after you leave DER. Any involvement which you would have with the Department must conform with the restrictions set forth above. 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. Conclusions As a Solid Waste Specialist for DER, Bureau of Waste Management, 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 Waste Management. As a "former public employee" with DER, Bureau of Waste Management, you would not be permitted to accompany a Department inspector on facility inspections regarding your new employer, nor could you provide requested documents and information to the inspector at the time of the inspection. 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 Mr. Scott D. Detwiler Page 7 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 an 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. Sincerely, Vincent . Dopko, Chief Counsel