HomeMy WebLinkAbout99-505 WhitcombThomas L. Whitcomb
27 Greenfield Dr.
Carlisle, PA 17013
Dear Mr. Whitcomb:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
February 4, 1999
Re: Former Public Employee; Section 1103(g); Hydrogeologist 2; DEP, Bureau of Mining
and Reclamation; Representation.
This responds to your letter of December 27, 1998 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act presents any
restrictions upon employment of a Hydrogeologist 2 following termination of service with
the Commonwealth of Pennsylvania Department of Environmental Protection, Bureau of
Mining and "Reclamation.
Facts: You retired from your position as a Hydrogeologist 2 for the Commonwealth
of Pennsylvania Department of Environmental Protection ( "DEP "), Bureau of Mining and
Reclamation on July 3, 1998. You have submitted a copy of your former job description
and classification specifications.
You ask for an advisory from the State Ethics Commission as to what restrictions
would be placed upon your activities until one -year has elapsed from your date of
termination from Commonwealth employment, that is, July 4, 1999.
Specifically, you ask if you may: 1) serve as a subpoenaed witness in cases
regarding your activities as a DEP employee; 2) represent a person on mining issues before
DEP without receipt of promised or actual compensation; 3) advise persons as to mining
issues such as reclamation, water handling, and regulations without representing said
persons before DEP; 4) perform work for an engineering consulting firm which submits
mine permit applications to DEP if you personally do not represent the applications before
DEP; and 5) personally appeal a DEP permit action to the Environmental Hearing Board.
You further state your belief that the aforementioned activities would not be restricted as
they lack either compensation or personal representation of a client before DEP.
Discussion: In the former capacity as a Hydrogeologist 2 for the Commonwealth
of Pennsylvania Department of Environmental Protection ( "DEP "), Bureau of Mining and
Reclamation, you would be considered a "public employee" subject to the Public Official
and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics
Commission. See, 65 Pa.C.S. §1102; 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;
FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us
99 -505
Whitcomb, 99 -505
February 4, 1999
Page 2
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 1103(g) of the Ethics Act.
While Section 1 103(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 1103. Restricted activities.
(g) Former official or employee. - -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 Pa.C.S. §1103(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
Act as follows:
65 Pa.C.S. §1102.
Section 1102. 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.
"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, inter alia, corporations and
other businesses. It also 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 /public 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.
Whitcomb, 99 -505
February 4, '1999
Page 3
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 1103(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 Act 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 1103(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 /public 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 were associated upon termination of public
service is DEP in its entirety. Therefore, for the first year after termination of you service
with DEP, Section 1 103(g) of the Ethics Act would apply and restrict "representation" of
"persons" before DEP.
In answer to the specific questions which you have posed, first, you may comply
as a subpoenaed witness since you are legally obligated to appear and testify as a result
of the subpoena. Secondly, you may represent persons before DEP in cases where you
are doing so without promised or actual compensation. Thirdly, as to whether you may
advise persons in mining issues without representing them before DEP, you may do so
under the Ethics Act provided your actions in actuality do not constitute representation
as defined in the Ethics Act. Fourth, you may perform work for an engineering firm which
submits applications to DEP when you personally do not represent the applications before
DEP," provided your name does not appear on the applications and you do not interact
with DEP so as to be engaged in prohibited representation of the firm. Lastly, as to your
own appeal to the Environmental Hearing Board of DEP action on a permit, you would not
be precluded from such action because you have a fundamental right to protect your own
property interest and secondly, you would be representing yourself (a person) but without
actual or promised compensation. McGrath, Opinion 98-011.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 1103(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 1 103(a) of
the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics
Act provide in part that no person shall offer to a public official /public employee and no
public official /public employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment of the public
Whitcomb, 99 -505
February 4, 1999
Page 4
official /public 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 Act; 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 Act.
Conclusion: In the former capacity as a Hydrogeologist 2 with the Commonwealth
of Pennsylvania Department of Environmental Protection ( "DEP "), Bureau of Mining and
Reclamation, you would be considered a "public employee" as defined in the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Upon
termination of service with DEP, you became a "former public employee" subject to
Section 1103(g) of the Ethics Act. The former governmental body is DEP. The restrictions
as to representation outlined above must be followed. The propriety of the proposed
conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act 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 1107(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.
inc rely,
Vincent J. opko
Chief Counsel