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HomeMy WebLinkAbout99-589 OdellTurner R. Odell, Jr. Chesapeake Bay Foundation Old Waterworks Building 614 N. Front Street Harrisburg, PA 17101 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL August 18, 1999 99 -589 Re: Former Public Employee; Section 1 103(g); Conservation Program Specialist 1; Bureau of Plant Industry; Pennsylvania Department of Agriculture . Dear Mr. Odell: This responds to your letter of July 14, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of a Conservation Program Specialist 1 following termination of service with the Bureau of Plant Industry of the Pennsylvania Department of Agriculture. Facts: Melanie Wertz was previously employed by the Bureau of Plant Industry with the Pennsylvania Department of Agriculture (PDA) as Conservation Program Specialist 1. She left her employment with PDA on March 26, 1999, to join the Chesapeake Bay Foundation (CBF) on April 15, 1999, as staff Agricultural Specialist. Wertz's primary duties with PDA were to coordinate and deliver the Nutrient Management Certification Program as required by the Nutrient Management Act. The purpose of the Nutrient Management Act is to establish criteria and nutrient management measures on some agricultural operations that produce or utilize animal manure with a goal of protecting water quality. Most provisions of the Act are administered by the State Conservation Commission (SCC). The certification program is identified by the Act as a program strictly within PDA established for the purpose of certifying individuals for the development of nutrient management plans. The program is targeted to members of the agribusiness and farming community with an interest in preparing nutrient management plans and to various agency personnel who are involved in the nutrient management program. Because of her familiarity with this program, Wertz also participated, along with representatives from the Department of Environmental Protection (DEP), the federal Natural Resources Conservation Service, Penn State University and others, on a multi - agency education working group to identify general educational needs associated with implementation of the Nutrient Management Act for the benefit of the SCC. This effort was designed to help the SCC meet its obligation under Section 4(5) of the Act, 3 P.S. § 1704(5), to provide education and technical assistance, in consultation with other FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Odell, 99 -589 August 18, 1999 Page 2 agencies. This particular SCC program is commonly referred to as the Nutrient Management Education Program. In the course of performing her duties for PDA related to nutrient management education, Wertz was frequently asked to report on her activities to the Nutrient Management Advisory Board (NMAB) and occasionally asked to report on her activities to the SCC. The NMAB is mandated by the Nutrient Management Act, Act 1993 -6, and by law consists of 15 members including livestock farmers, non - farmer citizens, representatives of agribusiness, local government and academia, and one environmental representative, all of whom are appointed by the SCC. The Agriculture Specialist previously employed by CBF had served as the environmental representative on NMAB. This slot on NMAB is currently vacant. Although Wertz worked collegially with many agency personnel, including SCC and NMAB staff, on a broad range of nutrient management issues, at no time did she report to or supervise any member of the SCC or the NMAB, or their staffs. You state that there is a loose relationship between PDA and these other bodies and there are staff at both DEP and PDA that support the activities of the SCC and the NMAB; you believe these bodies are clearly not subdivisions or offices of the PDA within the meaning of the laws and regulations of the Ethics Act. You would like Wertz to be able to represent CBF as a member of the NMAB and as a member of the Chesapeake Bay Advisory Committee (CBAC) to the SCC. The CBAC to the SCC is a committee created and appointed by the SCC to provide guidance to the SCC and cooperating agencies and organizations on Pennsylvania's Chesapeake Bay Program and Nutrient Reduction Strategy as part of a multi- state /federal effort to reduce nutrient loading to the Chesapeake Bay and on other issues affecting the Chesapeake Bay. Wertz did not interact with the CBAC in her previous position. The SCC itself was created as a departmental administrative commission in what was formerly known as the Department of Environmental Resources (DER), now DEP, and consisted of four farmer members plus the Dean of the Penn State College of Agriculture and the Secretaries of DER and PDA, with the DER Secretary serving as chairman of the Commission. In 1995, reorganizational legislation provided that the Secretaries of DEP and PDA would alternate annually as chair of the SCC and provided for the selection and employment, by majority vote of the SCC, of an independent 1 executive secretary to act as staff to the SCC. That same legislation also provided for additional support for the SCC's nutrient management activities from PDA, but it did not, to your knowledge, alter the fundamental structure of the SCC as a departmental administrative agency of what is now DEP. Wertz was never employed by the SCC, the NMAB, or the CBAC, and you believe that she is free to interact with those entities on behalf of the CBF. Because the SCC and its advisory bodies are in some manner associated with the Department of Agriculture and because Wertz had occasion in the course of her employment at PDA to interact with the Commission and its advisory bodies, you felt it was appropriate to confirm with the State Ethics Commission that there would be no conflict and that Wertz would not be prohibited from serving on the above - mentioned committees. Because of the structure of the SCC, the NMAB and the CBAC, as stated above, you assert that these entities are distinct from PDA, and therefore, with respect to Wertz, none of these entities would constitute a "governmental body with which a public official or public employee is or has been associated" within the meaning of the Ethics Act and Regulations. You believe that Wertz may participate as a member of the NMAB and /or as a member of the CBAC to the SCC without violating the laws and regulations of the Ethics Act. Odell, 99 -589 August 18, 1999 Page 3 You seek an advisory from the State Ethics Commission on this matter. Discussion: In the former capacity as Conservation Program Specialist 1 for Bureau of Plant Industry of the PA Department of Agriculture , Wertz would be considered a "public Employee" subject to the 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; 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, Wertz became a "former public Employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(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. Odell, 99 -589 August 18, 1999 Page 4 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. 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 Wertz is associated upon termination of public service is PDA in its entirety. The SCC, NMAB and CBAC are not former governmental bodies of Wertz. Therefore, for the first year after termination of Wertz service with PDA, Section 1 103(g) of the Ethics Act would apply and restrict "representation" of "persons" before PDA. 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 1 103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no Odell 99 -589 August 18, 1999 Page 5 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 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 Conservation Program Specialist 1 with Bureau of Plant Industry of the Pennsylvania Department of Agriculture, Wertz would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with Bureau of Plant Industry of the Pennsylvania Department of Agriculture , Wertz would become a "former public Employee" subject to Section 1 103(g) of the Ethics Act. The former governmental body is the Pennsylvania Department of Agriculture. 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), 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. 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 J. Dopko Chief Counsel