Loading...
HomeMy WebLinkAbout97-621 ZieglerGlen D. Ziegler 435 South 3rd Street Apartment 1 Lemoyne, PA 17043 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 22, 1997 97 -621 Re: Former Public Employee; Section 3(g); Mining Engineer I; Department of Environmental Protection, Bureau of Deep Mine Safety. Dear Mr. Ziegler: This responds to your letter of October 1, 1997 by 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 Mining Engineer I following termination of service with the Commonwealth of Pennsylvania, Department of Environmental Protection. Facts: You were previously employed by the Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), Bureau of Deep Mine Safety as a Mining Engineer I. You decided to change careers, and since June 16, 1997, you have been employed by Transfer Technology as a computer consultant. Transfer Technology provides computer consulting and is not involved in any other business activities. In your initial assignment with Transfer Technology, you have been working as a computer consultant at Hershey Foods Corporation. That assignment will be completed within the next month or two. The majority of Transfer Technology's work is with DEP. Transfer Technology has an existing five year computer consulting contract with DEP, which contract is now in its third year. Pursuant to the contract, Transfer Technology provides computer help desk services, network support, year 2000 support, and the like. You ask whether, pursuant to the Ethics Law, you may become part of the Transfer Technology team which works at DEP. If you were to become part of that team, you would be working at DEP's Harrisburg Central Office and you would report directly to the Transfer Technology project manager. You state that you would have absolutely no ability to influence any business, provide useful contacts, or provide any proprietary information. You further note that the Bureau of Deep Mine Safety (the Bureau for which you worked while employed by DEP) is no longer at DEP's Harrisburg Central Office. Ziegler, 97 -621 October 22, 1997 Page 2 You state that if you are precluded from working at DEP, your employment opportunities will be severely limited when your work at Hershey ends. You request a ruling by this Commission on this matter. Specifically, you ask that a "variance to the policy" be granted, in support of which you cite Webster, Opinion No. 95 -011. Copies of your job description and job classification specifications have been obtained and are incorporated herein by reference. Discussion: In the former capacity as a Mining Engineer I for the Department of Environmental Protection (DEP), Bureau of Deep Mine Safety, you would be considered a "public employee" subject to the Public Official and Employee Ethics Law ( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 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 one or more of the following: 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 employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. This Advice shall initially set forth the restrictions of Section 3(g), after which your specific inquiry shall be addressed. While Section 3(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": 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. 65 P.S. §403(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Law 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 Ziegler, 97 -621 October 22, 1997 Page 3 contain the name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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. 65 P.S. §402. The term "Person" is very broadly defined. It includes the former public employee himself, Confidential Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (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; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 3(g) also generally prohibits 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 pertain to a contract that existed prior to termination of public service, Shay, Opinion 91 -012. However, if such a pre- existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95- 011 A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the public official /public employee may not be identified on documents submitted to the former governmental body. The public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Law would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but 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. Ziegler, 97 -621 October 22, 1997 Page 4 Section 3(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you have been associated upon termination of public service is DEP in its entirety, including but not limited to the Bureau of Deep Mine Safety. Therefore, for the first year after termination of your service with DEP, Section 3(g) of the Ethics Law applies and restricts "representation" of "persons" — including but not limited to your new employer, Transfer Technology — before DEP. Having set forth the restrictions of Section 3(g), your specific inquiry shall now be addressed. As a practical matter, it would appear to be impossible for you to function as part of Transfer Technology's team at DEP without running afoul of Section 3(g). You could not provide such consulting services to DEP at DEP's Harrisburg Central Office without engaging in prohibited representation of your new employer before DEP. As for the fact that the Bureau of Deep Mine Safety has been eliminated from DEP's Harrisburg Central Office, as noted above, the Section 3(g) restrictions apply as to DEP in its entirety — not merely as to the Bureau of Deep Mine Safety. As for your request for a "variance to the policy" such as you perceive to have been granted in Webster, Opinion No. 95 -01 1, you are advised that Mr. Webster was not granted a "variance" and in fact, there are no "variances" to the applicability of Section 3(g). Furthermore, in Webster, Opinion No. 95 -01 1, the Commission did not allow Mr. Webster to perform his new, private employment duties at a work site of his former governmental body. Rather, as noted at page 3 above, the Commission simply held that where there was a pre- existing contract that did not involve the unit where Mr. Webster as a former public employee had worked, his name could appear on routine invoices submitted by his new employer if required by the agency regulations. Mr. Webster was in fact still required to comply. with the Section 3(g) restrictions. Similarly, you must comply with Section 3(g), and during the one -year period of its applicability, you may not perform computer consulting work for your new private employer at DEP. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 3(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Further, you are advised that 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 judgment 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. Ziegler, 97 -621 October 22, 1997 Page 5 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 Law 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 the former capacity as a Mining Engineer I for the Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), Bureau of Deep Mine Safety, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DEP, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is DEP in its entirety, including but not limited to the Bureau of Deep Mine Safety. The restrictions as to representation outlined above must be followed. During the one -year period of applicability of Section 3(g), you may not perform computer consulting work for your private employer at DEP. 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 would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 7(1 1), 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 §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 thirty (30) days may result in the dismissal of the appeal. ci 'ncerely, 1.:-c" Vincent J. Dopko Chief Counsel