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HomeMy WebLinkAbout94-580 ShoenerEd Shoener 2226 Cedar Avenue Scranton, PA 18505 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 21, 1994 94 -580 Re: Former Public Employee; Section 3(g); DER; Regional Director. Dear Mr. Shoener: This responds to your letter of June 7, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a regional director following termination of service with the Department of Environmental Resources. Facts: You have been the Regional Director for the Department of Environmental Resources (DER) in the Wilkes -Barre regional office since 1987 wherein you direct a staff of approximately 230 people with responsibility of administering most of DER's regulatory programs as per fact sheet /pamphlet on the region which is enclosed and which is incorporated herein by reference. You plan to leave your position shortly to work in the environmental consulting business and understand that the State Ethics Law prohibits you from representing any clients or persons before DER for one year for activities such as obtaining permits, defending against enforcement actions or obtaining grants and loans. Since you are unsure about some activities you seek advice, specifically relating to your first year after leaving DER as to the following: following the standard DER file review procedures and requesting files and reviewing files at DER's offices which are general public information, but site specific; contacting DER for publicly available general information such as copies of regulations, policies, technical guidance, etc.; conducting training seminars /conferences using non -DER funds with DER employees being allowed to participate or with contact as to DER offices requesting participation in round table discussions or for short presentations where DER employees would not be compensated in seminars to discuss DER regulations and procedures which seminars/ Shoener, Ed, 94 -580 June 21, 1994 Page 2 conferences will be for foreign government officials and for citizens who are in the United States to obtain information on environmental protection programs; and representing clients /persons before governmental bodies other than DER, on matters which you were associated while at DER such as working with municipal governments to establish sewer systems, recycling programs without representation of these entities before DER, but being in contact with local officials and other state agencies such as Commerce and PennVest and federal agencies. Discussion: As a Regional Director for 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. 5402; 51 Pa. Code 511.1. 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 minimis 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 are 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 Shoener, Ed, 94 -580 June 21, 1994 Page 3 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. In applying the above definition to the instant matter, we must conclude that the governmental body with which you are associated upon termination of public service would be DER including all regional offices. 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 are associated is DER. Shoener, Ed, 94 -580 June 21, 1994 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 restriction against such "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. The Commission, in Poiovich, 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; 3. Submission of bid or contract proposals which are signed by 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. Shoener, Ed, 94 -580 June 21, 1994 Page 5 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. In Shav, Opinion 91 -012, the Commission held that Section 3(g) would prohibit the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertained to a contract which existed prior to termination of public service. 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. However, you may not be identified on documents submitted to DER. 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, 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. In Confidential Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. 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 anything 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 been or will be any transgression thereof but merely to provide a complete response to the question Shoener, Ed, 94 -580 June 21, 1994 Page 6 presented. In response to your four specific inquiries, you would not be precluded from requesting and reviewing files at DER offices which contain general public information that are site specific provided that this information is available to the general public. As to your second inquiry, you would not be precluded from contacting DER for publicly available general information assuming that such information is indeed available to the public. As to your third inquiry regarding conducting training seminars using non -DER funds with a potential of the participation of DER employees, caution must be exercised. In particular, although the Ethics Law would not prohibit you from conducting seminars /conferences, such action by you in terms of contacting DER for employee participation or for round table discussion at said conferences wherein you would be obtaining fees from participants such as government officials or citizens would be considered a representation by you in that you would be using your position as a former public employee as a means of utilizing or obtaining DER employees for your seminars which will generate a pecuniary benefit and an increased pecuniary benefit to the extent that the seminars /conferences will draw more participants with a roster of DER employees. As to your fourth inquiry, you would not be precluded as noted above from representing clients or persons before governmental bodies other than DER on matters which you were associated while employed in DER. 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 a Regional Director for 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 all regional offices. 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 Shoener, Ed, 94 -580 June 21, 1994 Page 7 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. ncerely, Vincent . Dopko Chief Counsel