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HomeMy WebLinkAbout95-568 ReillySTATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 16, 1995 Margaret A. Reilly 2137 Rudy Road Harrisburg, PA 17104 95 -568 Re: Conflict, Public Official /Employee, Private Employment or Business, Independent Contractor, Existing Contract; Former Public Employee, Section 3(g), Radiation Health Physicist IV, Chief of Division, Agency Split, New Agency, DER. Dear Ms. Reilly: This responds to your letter of April 25, 1995, in which you requested advice from the State Ethics Commission. Issues: First, whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Radiation Health Physicist IV and Chief of the Division of Radiation Protection following termination of service with the Deparmtent of Environmental Resources. Second, whether a Radiation Health Physicist IV is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: On December 30, 1994, you retired from DER as Radiation Health Physicist IV. Your last position with DER was Chief, Division of Radiation Protection, Deputate for Air and Waste Management. Before your retirement, your responsibilities included providing technical support to the DER Deputate for State Parks and Forestry in attending to the cleanup of a contaminated state -owned facility, which is administered by the Deputate for Parks and Forestry. After DER is split into two agencies, the Deputate for State Parks and Forestry and the Deputate for Air and Waste Management will be in separate agencies. You state that DER appears to be interested in you contributing to the cleanup of the contaminated state -owned facility over the next few years. You state that you have read the Guide to Pennsylvania Public Official and Employee Ethics Law (Rev. 4/93) and that you have questions concerning appropriate activities under the Ethics Law, particularly paragraph (g). You seek advice from the Commission Reilly, Margaret A., 95 -568 May 16, 1995 Page 2 under the Ethics Law concerning several employment opportunities following your retirement. You ask four questions. First, you ask, following retirement, whether you can work on a DER project as an independent contractor to a contractor already working on the DER project. In this regard, you ask for clarification of the meaning of the words "represent" and "governmental body." Second, you ask, if you were reemployed by DER under the provisions of the "window," which was applicable at the time of your retirement and provides for a retiree's "emergency" reemployment for up to ninety - five days a year, whether the effective date of your "leaving" would be revised to coincide with the end of the emergency service. Third, you ask whether you may work for DER on an emergency basis for one project while you are working on another DER project as an independent contractor for a contractor that has an existing contract with DER. Fourth, you ask whether the split of DER into two agencies would have any effect on your obligations under the Ethics Law. Discussion: As a Radiation Health Physicist IV and Chief of the Division of Radiation Protection of DER, you were 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 §11.1. 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 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. Reilly, Margaret A., 95 -568 May 16, 1995 Page 3 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. 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 DER. 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 Reilly, Margaret A., 95 -568 May 16, 1995 Page 4 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. In your request for advice, you asked whether the split of DER into two agencies would have an effect on your obligations under the Ethics Law. As stated above, you are prohibited from representing a person before all subdivisions of DER. A split in DER creating two agencies would not change the prohibition; you would not be allowed to represent a person before any subdivision of the two agencies, which were formerly 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 your request for advice, you asked whether emergency employment with DER would change the date of your leaving. As an emergency employee of DER, you would be a public employee as defined under the Ethics Law. Consequently, upon termination of your emergency employment with DER you would be a former public employee subject to Section 3(g) of the Ethics Law quoted above. The date of your "leaving" would be the date of the termination of your emergency employment and the one -year restriction on representation would apply again, starting from that date. 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 Reilly, Margaret A., 95 -568 May 16, 1995 Page 5 are signed by or contain the name of a former public official or public employee. 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; 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. 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. References to DER in the preceding paragraph refer to the agency as it exists today as well as any agencies created as a result of a DER split. Reilly, Margaret A., 95 -568 May 16, 1995 Page 6 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. As to whether you could work on a DER project as an independent contractor to a contractor already working on a DER project, Section 3(g) of the Ethics Law does not prohibit employment but rather than representation of a person before the former public official's governmental body. Thus, although you may seek whatever employment you choose, you must insure that you do not represent your new employer before your former governmental body. It is difficult to fathom how you could work for the contractor on the existing DER contract without transgressing Section 3(g) in that your appearance or the submission of documents which would include your name would constitute prohibited representation. This advice now turns to your employment by DER as an emergency employee. As Radiation Health Physicist IV /emergency employee for DER, you would be a public employee as that term is defined under the Ethics Law, and hence you would be subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the Reilly, Margaret A., 95 -568 May 16, 1995 Page 7 authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 anything of monetary value 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 presented. In applying the above provisions of the Ethics Law to the instant matter, it is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89-013. Thus, a public official /employee could not perform private business Reilly, Margaret A., 95 -568 May 16, 1995 Page 8 using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office / employment for such a prohibited private pecuniary benefit. In the event that your private employer or business has a matter pending before DER or if you as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that you be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. 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 Radiation Health Physicist IV /Chief of the Division of Radiation Protection, you were considered a "public employee" as defined in the Ethics Law. Upon termination of service with DER, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is DER and any agencies created as the result of a split of DER. The Reilly, Margaret A., 95 -568 May 16, 1995 Page 9 restrictions as to representation outlined above must be followed. As a Radiation Health Physicist IV /emergency employee for DER, you would be a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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 thirty (30) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be received at the Commission by hand delivery, Tnited States mail, delivery service, or by FAX transmission (71 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Vincent J. Do Chief Counsel