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HomeMy WebLinkAbout99-505-S WhitcombThomas L. Whitcomb 27 Greenfield Drive 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 December 30, 1999 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 99 -505 -S Re: Conflict; Public Official /Employee; Consultant; Engineering Firm; Pennsylvania Department of Environmental Protection. This responds to your letter of November 30, 1999 by which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 a sg,., presents any prohibition or restrictions upon a part -time consultant under contract with the Pennsylvania Department of Environmental Protection ( "DEP ") as to performing consulting work for an engineering firm which submits mine permit applications to DEP. Facts: In response to your letter of December 27, 1998 requesting an advisory, Advice of Counsel 99 -505 was issued to you on February 4, 1999. Along with your letter of November 30, 1999, you have submitted copies of your initial request, your most recent job description for your former position with the Pennsylvania Department of Environmental Protection ( "DEP "), and Advice of Counsel 99 -505, which are incorporated herein by reference. You state that you are presently working for DEP (Pottsville District Mining Office) as a part -time consultant under contract. You ask whether you would have a conflict of interest under the Ethics Act or "any similar Pennsylvania Act" by performing consulting work for an engineering firm that submits mine permit applications to DEP while also performing consulting work for DEP as long as you do not represent the engineering firm before DEP on any issue and you do not review any submittal made by that engineering firm to DEP. You state that since you are a consultant rather than an employee, you feel that it would be very easy for you and the Pottsville District Office to completely avoid any situation where you would have any influence on any permit application or issue submitted by the engineering firm for which you are performing consulting work. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the Whitcomb, 99 -505 -S December 30, 1999 Page 2 advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Further, this Commission only administers the Ethics Act and the Lobbying Disclosure Act. Accordingly, we do not have the jurisdiction and hence cannot offer advice as to other Pennsylvania laws. The issue in this case is whether, in your capacity as a part-time consultant under contract with DEP, you would be considered a public employee as defined in the Ethics Act. Based upon your specific factual representation that you are a part -time consultant under contract with DEP and not an employee of DEP, you would not be a "public employee" under the Ethics Act. Thus, you would not be subject to the conflict of interest provisions under Section 1 103(a) of the Ethics Act. Further, you would not be subject to the provisions relating to prohibited representation by former public officials /public employees under Section 1103(g) of the Ethics Act. The only provisions of the Ethics Act which apply to you are Sections 1103(b) and 1 103(c) which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public 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. Having concluded that you are not a public employee under the Ethics Act, your specific inquiry need not be addressed. 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. Specifically not addressed herein are "any other similar Pennsylvania Acts" to which you refer in your letter of November 30, 1999. Conclusion: Based upon your specific factual representation that you are a part - time consultant under contract with DEP and not an employee of DEP, you would not be a "public employee" under the Ethics Act. Thus, you would not be subject to the conflict of interest provisions under Section 1 103(a) of the Ethics Act. Further, you would not be subject to the provisions relating to prohibited representation by former public officials /public employees under Section 1103(g) of the Ethics Act. The only provisions of the Ethics Act which apply to you are Sections 1103(b) and 1 103(c) which apply to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), an 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, provided the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Whitcomb, 99 -505 -S December 30, 1999 Page 3 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. Vincent . Dopko Chief Counsel