HomeMy WebLinkAbout00-505 FlissSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
January 20, 2000
Jeffrey J. Fliss, PE
PA Department of Environmental Protection
Bureau of Mining & Reclamation
3913 Washington Road 00 -505
McMurray, PA 15317
Re: Conflict; Public Official /Employee; Mining Permit and Compliance Specialist;
Pennsylvania Department of Environmental Protection; Testimony.
Dear Mr. Fliss:
This responds to your letter of December 17, 1999 by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a Mining Permit
and Compliance Specialist as to participating as a witness on behalf of his former
employer before the Commonwealth Court and the Environmental Hearing Board in
legal proceedings relating to the former employer's request to reinstate a municipal
solid waste permit to operate a landfill facility.
Facts: You have been employed as a Mining Permit and Compliance Specialist
for the Pennsylvania Department of Environmental Protection (DEP), District Mining
Operations, McMurray District Office since September 27, 1999. From the early
1990's until September 22, 1998, you were employed by Leatherwood, Inc.
(Leatherwood), a subsidiary of Rochester & Pittsburgh Coal Company as General
Manager.
As General Manager of Leatherwood, you were extensively involved in work
associated with obtaining a municipal solid waste permit from the State to operate a
landfill facility in Jefferson County, Pennsylvania. The solid waste permit was issued
by DEP to Leatherwood on May 12, 1995.
You state that after the solid waste permit was issued to Leatherwood, a federal
law introduced by Representative Bud Shuster passed which caused DEP to suspend
Leatherwood's permit. You believe the permit suspension occurred in 1997 and that
the federal law was declared unconstitutional in 1998.
Leatherwood now wishes to develop or sell the site. To your knowledge, DEP
has not yet reinstated the permit even though Leatherwood has so requested. The
permit issued to Leatherwood contains a condition stating that the permit is null and
void "if solid waste is not disposed of at the site within five years of issuance."
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
Fliss, 00 -505
January 20, 2000
Page 2
Leatherwood has filed a lawsuit on which a hearing is scheduled in
Commonwealth Court on either December 29, 1999 or December 30, 1999. The
hearing will specifically address Leatherwood's position that the five year period should
not apply because the law preventing site development was declared unconstitutional
in the interim. You state that there will be a separate hearing on the topic in front of
the Environmental Hearing Board in mid January 2000.
You have had ongoing discussions regarding these matters with Diana Stares
(Stares) and Mike Buchwach from the Office of Chief Counsel, DEP Southwest
Regional Office. According to Stares, you will receive a subpoena from Leatherwood
to testify at both hearings. You state that your current position with DEP, District
Mining Operations has no connection(s) whatsoever with Leatherwood or the solid
waste industry.
You state that Stares has told you the following: 1) she will insist that you be
subpoenaed by Leatherwood for both hearings; 2) you will be able to take paid civil
leave from DEP; 3) you will be reimbursed by DEP for travel expenses and lodging.
DEP will then be reimbursed by Leatherwood (You state that Stares and the attorneys
in Harrisburg are still investigating whether you can be reimbursed by Leatherwood for
time spent in preparation for the hearings); and 4) no time at your present position can
be used for preparation.
You request that the Commission review the situation and provide a written
"positional statement" as to your status concerning the Ethics Act and the propriety
of your participation as a witness in the above proceedings.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (11), advisories are issued to the
requestor based upon the facts which the requestor has submitted. In issuing the
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), (11).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As a Mining Permit and Compliance Specialist for the Pennsylvania Department
of Environmental Protection (DEP), you are a public employee as that term is defined
in the Ethics Act, and hence you are subject to the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. Definitions.
Fliss, 00 -505
January 20, 2000
Page 3
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received
through his holding public office or employment for the
private pecuniary benefit of himself, a member of his
immediate family or a business with which he or a member
of his immediate family is associated. The term does not
include an action having a de minimis economic impact or
which affects to the same degree a class consisting of the
general public or a subclass consisting of an industry,
occupation or other group which includes the public official
or public employee, a member of his immediate family or a
business with which he or a member of his immediate
family is associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary
to the performance of duties and responsibilities unique to
a particular public office or position of public employment.
65 Pa.C.S. §1102.
In addition, Sections 1 103(b) and 1103(c) of the Ethics Act provide in part that
no person shall offer to a public official /employee anything of monetary value 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.
In applying the above provisions of the Ethics Act to the instant matter,
pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from using the authority of public office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official /public employee himself, any member of his immediate family, or
a business with which he or a member of his immediate family is associated.
Section 1 103(a) of the Ethics Act does not prohibit public officials /employees
from engaging in outside business activities or employment; however, the public
official /employee may not use the authority of office for the advancement of his own
private pecuniary benefit or that of a business with which he is associated. Pancoe,
Opinion 89 -01 1. A public official /employee must exercise caution so that his private
business activities do not conflict with his public duties. Crisci, Opinion 89 -013.
Thus, a public official /employee could not perform private business using governmental
facilities or personnel. In particular, the governmental telephones, postage, staff,
equipment, research materials, personnel or any other property could not be used as
a means, in whole or in part, to carry out private business activities. In addition, the
public official /employee could not during government working hours, solicit, promote,
or perform such business activity. Pancoe, supra. Similarly, Section 1103(a) would
expressly prohibit the use of confidential information received by holding public
office /employment for such a prohibited private pecuniary benefit.
As to the question you have posed, you are advised that the Ethics Act would
not prohibit you from participating as a witness in the legal proceedings involving
Leatherwood as long as the above restrictions are observed. If you are subpoenaed,
Fliss, 00 -505
January 20, 2000
Page 4
you are required by law to appear and testify. It is noted that your travel expenses
and lodging will be paid by DEP but Leatherwood will subsequently reimburse DEP.
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 respective municipal code.
Conclusion: As a Mining Permit and Compliance Specialist for the Pennsylvania
Department of Environmental Protection, you are a public employee subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 et sew. Section 1103(a) of the Ethics Act would not preclude you from
participating as a witness on behalf of your former employer before the
Commonwealth Court and the Environmental Hearing Board in legal proceedings
relating to the former employer's request to reinstate a municipal solid waste permit
to operate a landfill facility, subject to the restrictions and qualifications as noted
above. Lastly, the propriety of the proposed conduct has only been addressed under
the Ethics Act.
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.
erely,
Vincent J. Dopko
Chief Counsel