HomeMy WebLinkAbout98-579 SimoniSuzanne Simoni
Merck & Co., Inc.
PO Box 4, 770 Sumneytown Pike
WP20 -208, Dept. 251
West Point, PA 19486 -0004
Dear Ms. Simoni:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
July 15, 1998
Re: Former Public Employee; Section 3(g); Regional Pollution Prevention and
Compliance Assistance Manager; DEP.
This responds to your letter of June 9, 1998 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 Regional Pollution Prevention and Compliance
Assistance Manager following termination of service with the Commonwealth of
Pennsylvania, Department of Environmental Protection.
Facts: You recently terminated your employment as a Regional Pollution
Prevention and Compliance Assistance Manager for the Southeast Regional Office of
the Commonwealth of Pennsylvania, Department of Environmental Protection ( "DEP ").
On June 1, 1998, you commenced work in the "Site Environmental Engineering"
section of Merck & Co., Inc. in West Point, PA. Merck's Site Environmental
Engineering staff is primarily responsible for the site's compliance with all federal,
state, and local environmental laws and regulations. The staff often attends events
conducted by DEP, including policy presentations by DEP's senior management; local
seminars on environmental topics; and the Governor's Awards for Waste Minimization.
Additionally, Merck's Site Environmental Engineering staff currently chairs the Pollution
Prevention Roundtable for Business and Industry ( "Roundtable ") which is sponsored
by DEP's Southeast Regional Office.
You request an advisory from the State Ethics Commission regarding the
restrictions of the Ethics Law that apply to you. Specifically, you ask for a
determination of:
1) The appropriate level of your participation in attending events such as
those enumerated above, which are conducted by DEP; and
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us
98 -579
Simoni, 98 -579
July 15, 1998
Page 2
2) Whether you may attend the meetings of the Roundtable and /or assume
the responsibilities held by its current Chairperson, who regularly
cooperates with DEP staff to arrange the Roundtable's quarterly
meetings.
You have submitted copies of your former and current job descriptions, and also
an organizational chart reflecting your current job with Merck, all of which documents
are incorporated herein by reference.
Discussion: In the former capacity as a Regional Pollution Prevention and
Compliance Assistance Manager for DEP, 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.
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
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.
Simoni, 98 -579
July 15, 1998
Page 3
65 P.S. §402.
"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.
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 -01 1.
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.
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.
Simoni, 98 -579
July 15, 1998
Page 4
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 Southeast
Regional Office. Therefore, for the first year after termination of your service with DEP,
Section 3(g) of the Ethics Law would apply and restrict "representation" of "persons"
before DEP.
Your specific inquiries shall now be addressed.
In response to your first specific inquiry as to the "appropriate level" of your
participation in attending events conducted by DEP, such as policy presentations by
DEP's senior management; local seminars on environmental topics; and the Governor's
Awards for Waste Minimization, you are advised as follows. To the extent such
meetings would not be open to the public and you would be attending in your capacity
with your new employer, such would constitute prohibited representation of your new
employer before DEP. To the extent such meetings would be open to the general
public, you could attend the meetings as a member of the general public; however, if
your role would go beyond that of a general observer so that you would actually
participate and /or advocate positions, not as a member of the general public but as a
representative of your new employer, such representation would be prohibited.
With regard to whether you may attend the meetings of the Roundtable, you are
advised as follows. Based upon the submitted fact that the Roundtable is sponsored
by DEP, the restrictions would be the same as set forth above. That is, if such
meetings would not be open to the public and you would be attending in your capacity
with your new employer, such would constitute prohibited representation of your new
employer before DEP. If such meetings wou /d be open to the general public, you could
attend the meetings as a member of the general public; however, if your role would
go beyond that of a general observer so that you would actually participate and /or
advocate positions, not as a member of the general public but as a representative of
your new employer, such representation would be prohibited.
With regard to assuming the duties held by the current Roundtable Chairperson,
you could only assume those duties if you could do so without transgressing the
restrictions of Section 3(g) as set forth herein. As a practical matter, it would appear
to be extremely difficult if not impossible for you to perform those functions without
transgressing Section 3(g) based upon your factual submission that the current
Chairperson regularly "cooperates" with DEP staff to arrange the Roundtable's
quarterly meetings.
Based upon the facts which have been submitted, this Advice has addressed
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.
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.
Simoni, 98 -579
July 15, 1998
Page 5
Conclusion: In the former capacity as a Regional Pollution Prevention and
Compliance Assistance Manager for the Commonwealth of Pennsylvania, Department
of Environmental Protection ( "DEP "), 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. 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 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(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 §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.
erely,
Vincent Do •' o
Chief Counsel