Loading...
HomeMy WebLinkAbout95-613 BielickiRichard J. Bielicki 2703 Logan Street Camp Hill, PA 17011 Dear Mr. Bielicki: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 31, 1995 95 -613 Re: Former Public Official /Employee; Section 3(g); Director, Bureau of Abandoned Mine Reclamation; Agency Split, New Agency; Department of Environmental Resources; Department of Environmental Protection; Department of Conservation and Natural Resources. This responds to your undated letter, 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 the Director of the Bureau of Abandoned Mine Reclamation following termination of service with the Department of Environmental Resources. Facts: As the former Director of the Bureau of Abandoned Mine Reclamation (BAMR) for the Department of Environmental Resources (DER), you request an advisory from the State Ethics Commission regarding your legal ability to provide compensated consulting services to contractors working for the Commonwealth of Pennsylvania, the Department of Environmental Protection (DEP), and /or BAMR. Your employment as Director of BAMR was terminated as of May 19, 1995. You had held that position from October, 1983. The agency was known as DER for the entire period of your employment. Copies of your job classification specifications and organizational chart for this position have been obtained, which documents are incorporated herein by reference. You state that BAMR was unique within DER in that it did not enforce regulations or laws and did not issue permits. Instead, the main function of BAMR was to contract for government funded land and water reclamation contracts. The main function of most Bureaus within DER was to permit, inspect and enforce universal compliance with environmental laws and regulations. You now wish to provide compensated consulting services to government contractors, a function which may require you to interface with the government contracting agency. You would Bielicki, Richard J. 95 -613 October 31, 1995 Page 2 generally be representing the contractor in disputes over work items, payments, contract schedules and similar issues. Services you would offer are of an engineering nature and are most directly related to skills and experiences you have acquired through education and employment prior to your position with BAMR /DER. You have posed the following specific inquiries: 1. Whether you may provide the above stated consulting services to contractors of any government agency during the exclusion period; 2. Whether you may provide these services to contractors of any government agency with the exception of BAMR during the exclusion period (since BAMR was atypical of DER Bureaus, providing these services to other DER -DEP Bureaus, you feel, appears to meet the requirements of the Conflicts of Interests statutes); 3. Whether you may provide these services to contractors of any government agency with the exception of DER during the exclusion period (since DER no longer exists, you seek guidance on how to address this problem); 4. Whether you may provide these services to contractors of any government agency with the exception of DEP (which assumed some of the functions of the former DER) during the exclusion period; 5. Whether you may provide these services to contractors of any government agency with the exception of DCNR (which assumed some of the functions of the former DER) during the exclusion period; 6. Which, if any, government agencies you would be prohibited from appearing before as a compensated consultant during the exclusion period; 7. Whether you may appear before any of the agencies in an uncompensated status (except for direct expenses), that you would be prohibited from appearing before in a compensated status; 8. Whether there are any other prohibitions, exclusions, or other matters of which you should be Bielicki, Richard J. 95 -613 October 31, 1995 Page 3 aware? As a footnote to the facts which you have submitted, it is noted that DCNR is an acronym for the Department of Conservation and Natural Resources. Discussion: In your former capacity as the Director of BAMR, you would be considered a "public official /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 became a "former" public official /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 been 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 Bielicki, Richard J. 95 -613 October 31, 1995 Page 4 or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, the governmental body with which you were associated upon termination of public service would be DER in its entirety including but not limited to BAMR. 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 Shama, 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. 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 upon termination would be DER in its entirety. 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 your former governmental body in its entirety, including but not limited to BAMR. The split of DER creating two new agencies would not change the prohibition: you would not be allowed to represent a person before any such 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 Bielicki, Richard J. 95 -613 October 31, 1995 Page 5 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 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 Bielicki, Richard J. 95 -613 October 31, 1995 Page 6 governmental body. In Shay, 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 your former governmental body. However, you may not be identified on documents submitted to your former governmental body. You may also counsel any person regarding that person's appearance before your former governmental body. Once again, however, the activity in this respect should not be revealed to your former governmental body. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of your former govermental body 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 applying the definition of "Person" quoted above, the Commission has held that the term includes a former public employee representing himself in providing consulting services to his former governmental body. Confidential Opinion 93 -005. Further, the term "Person" includes a new government employer which is represented by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. As for your specific inquiries, all but the seventh inquiry have been addressed fully above. As for your seventh specific inquiry, by its own terms, Section 3(g) applies to representation with "promised or actual compensation." It is not clear from your letter what you mean by "direct expenses," so that portion of your inquiry may not be addressed. It is possible that what you consider to be a "direct expense" may be a form of compensation. You may seek further advice as specific circumstances arise. Furthermore, Sections 3(b) and 3(c) of the Ethics Law provide Bielicki, Richard J. 95 -613 October 31, 1995 Page 7 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 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In your former capacity as the Director of the Bureau of Abandoned Mine Reclamation (BAMR) for the Department of Environmental Resources (DER), you would be considered a "public official /public employee" as defined in the Ethics Law. Upon termination of service with DER, you became a "former" public official /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, including the Department of Environmental Protection and the Department of Conservation and Natural Resources. 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. 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 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. Bielicki, Richard J. 95 -613 October 31, 1995 Page 8 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, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. D ko Chief Counsel