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HomeMy WebLinkAbout99-627 SachseDear Mr. Sachse: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL November 8, 1999 Allen Sachse PA Dept. of Conservation and Natural Resources 101 Samters Building 201 Penn Avenue Scranton, PA 18503 -2025 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -627 Re: Former Public Employee; Section 1103(g); Heritage Parks and Recreation Supervisor; Bureau of Recreation and Conservation; Department of Conservation and Natural Resources. This responds to your letter of October 5, 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 Heritage Parks and Recreation Supervisor following termination of service with the Department of Conservation and Natural Resources. Facts: You are employed as Heritage Parks and Recreation Supervisor for the Bureau of Recreation and Conservation, Pennsylvania Department of Conservation and Natural Resources ( "DCNR ") in the Northeast Field Office. Your duties include providing technical assistance, guidance and grant administration services to municipalities, heritage park areas, land trusts, river groups, and other grass roots organizations working to protect and enhance the Commonwealth's natural and cultural resources. Copies of your job description, job classification specifications, and organizational chart have been obtained from DCNR and are incorporated herein by reference. You have been offered and have tentatively accepted a new position as Executive Director for the Delaware & Lehigh National Heritage Corridor Commission ( "Commission "), which Commission is a federal agency. You state that the Commission was created by Congress in 1988 and is one of the many agencies to which you provide assistance. You pose the following specific inquiries: 1. Since the Commission is a federal agency, are there any restrictions with respect to your accepting the position as Executive Director for the Commission? Sachse, 99 -627 November 8, 1999 Page 2 2. Will restrictions be placed upon the Commission or you with respect to any involvement in DCNR programs? If so, for what time period will the restrictions apply? 3. Lehigh Gorge and Delaware Canal State Parks are very significant resources within the Corridor. The Commission is often in the position to advocate for technical support and funding to protect and enhance significant resources and has received funding from a variety of federal, state, local, and private sources. This advocacy role may directly benefit state parks. In such situations, what are your restrictions concerning DCNR staff who manage these park resources? Discussion: As a Heritage Parks and Recreation Supervisor for DCNR, you 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 § 1 1.1. 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 would become 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: 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. Sachse, 99 -627 November 8, 1999 Page 3 65 Pa.C.S. §1102. "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. 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 1 103(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. Sachse, 99 -627 November 8, 1999 Page 4 The governmental body with which you would be associated upon termination of public service would be DCNR in its entirety. Therefore, for the first year after termination of your service with DCNR, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons " -- including the Commission -- before DCNR. We will now address the specific questions you have posed. In response to your first inquiry, Section 1 103(g) of the Ethics Act would not preclude you from accepting employment with the Commission. In response to your second inquiry, Section 1103(g) of the Ethics Act would restrict you from engaging in activities that would constitute representation of the Commission before DCNR. The restrictions would apply for one year following termination of service with DCNR. In response to your third inquiry, you are advised that pursuant to Section 1103(g) of the Ethics Act, you would not be permitted to advocate for technical support and funding on behalf of the Commission before DCNR or DCNR staff during the one year period of applicability of Section 1103(g). Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(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 1 103(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 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Heritage Parks and Recreation Supervisor for the Pennsylvania Department of Conservation and Natural Resources ( "DCNR "), you 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 DCNR, you would become a g former public employee" subject to Section 1 103(g) of the Ethics Act. The former overnmental bod would be DCNR 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 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 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 Sachse, 99 -627 November 8, 1999 Page 5 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 forma/ 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. c6 iincerely, irko Vincent J. opko Chief Counsel