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HomeMy WebLinkAbout84-017 HuntMargot Hunt, Director Community Relations Department of Environmental Resources 9th Floor Fulton Bank Building Harrisburg, PA 17120 II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 10, 1984 OPINION OF THE COMMISSION 84 -017 Re: Federal Interpersonnei Act, Loaned Employee, Public Employee Dear Ms. Hunt: I. Issue: You ask whether, as a federal employee on "loan" to the Commonwealth, you are to be considered a "public employee" pursuant to the Ethics Act and, therefore, subject to Sections 3(a) and (e) of the State Ethics Act. You indicate that you are a federal employee, having been most recently employed by the Environmental Protection Agency, hereinafter, EPA. However, pursuant to the terms of the Federal Interpersonnel Act (IPA) which allows federal employees to be "loaned" to other levels of government, you are currently serving as Director of Community Relations in the Department of Environmental Resources, hereinafter, DER. Under the terms of this Federal Act, a contract is written between DER and EPA which specifies what your duties and responsibilities are under the terms of this "loan ". Under this contract, seventy percent (70%) of your salary is paid by DER and thirty percent (30%) by EPP. Basically, in order to effect this arrangement, your salary is paid directly by EPA and the State reimburses EPA for seventy percent (70%) of your salary. While you are on "loan" from EPA, you continue to earn retirement credits and retain retirement rights which you had with the Federal government. Additionally, your leave and sick time, for example, are regulated by EPA and remain the responsibility of EPA. Nevertheless, on a day -to -day basis, within the confines of the Interpersonnel Act and contract, your activities are subject to the direction and control of the Secretary of DER. In performing your functions, you utilize office space and personnel supplied by DER. In your capacity with DER, we also assume that you have the right to direct and control the activities of other DER personnel. Margot Hunt, Director October 10, 1984 Page 2 In your position with DER, as set forth in your IPA agreement, you are responsible for advising the Secretary with respect to community relations; designing, implementing and managing a comprehensive community relations program and a pro- active community relations and public participation program, including staffing and training personnel to accomplish these tasks; and serving as liaison between EPA as set forth above. You are to develop, at the conclusion of your serivce, specific recommendations for changes and improvements for the EPA community relations program vis -a -vis EPA's interaction with Pennsylvania. It should be noted that while employed by EPA, you worked within Region 3 (Philadelphia) as a Community Relations Coordinator with relation to "Superfund ". Because of your special skills in this area, the Secretary of DER asked you to come to DER to set up the Community Relations Bureau. In carrying out your responsibilities, however, even though you remain an employee of EPA, your main obligation is to coordinate DER policy and programs with EPA and, if necessary, if EPA and DER disagree, you would be responsible in your present post for assuming and arguing the position of DER. Finally, at present, you indicate that you are not currently required by Federal Law to complete any form or make any financial disclosure equivalent to the Statement of Financial Interests required under the State Ethics Act. III. Applicable Law: The law to be applied to this question is as follows: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: Margot Hunt, Director October 10, 1984 Page 3 (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. "Person." A business, individual, corporation, union, association, firm, partnership, committee, c'ub or other organization or group of persons. 65 P.S. 402. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. 65 P.S. 402. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403. Margot Hunt, Director October 10, 1984 Page 4 IV. Discussion: Initially, we must note that our response is limited to the question of the application or impact of the Ethics Act on you as an employee "on loan" from EPA to the Commonwealth under the provisions of this Federal Interpersonnel Exchange Program. In this light, the first question becomes: Are you, as an employee of EPA on "loan" to DER and serving the Commonwealth under this program, to be considered a "public employee" or "public official" subject to the coverage of the Ethics Act? The second question, as you have indicated in your inquiry, becomes: What standard of conduct is expected of you by the Ethics Act while you work with DER and afterward? As we stated in our Opinion in Baxter, 81 -004, regarding the effect of the Governor's Executive Exchange Program we must answer this question in light of the contract in question, the manner in which the contract is to be performed, and the specific provisions and the purpose of the Ethics Act. Under the circumstances outlined above, where your day -to -day activities are subject to the direction and control of DER, we view this transfer of the right to control the manner and execution of the work to be done as a basic indicator that an employment relationship exists between the Commonwealth (DER) and you as the employee who is on "loan ". Because this work is also done using State equipment and supplies, during regular State hours, and on State property it becomes clear that even though you are on "loan" from EPA you are essentially an employee of DER. As we stated in Baxter, your status becomes that of a "public employee" where the contract under which you work during this "loan" period gives you the right to supervise other State employees to meet the goals established by your loan agreement. Here, we assume that because of your status and responsibilities with DER, you are responsible for taking or recommending official action of a non - ministerial nature with regard to one or more categories set forth in (1) -(5) of the definition of "public employee" cited above. Thus, generally, you should be considered a "public employee" within the coverage of the Ethics Act. Therefore, you must file a Statement of Financial Interests for each year you serve with DER or the Commonwealth, under this program, and for the year after you terminate such service. You also inquire as to the applicability of Section 3(a) of the Ethics Act as well as that of Section 3(e) of the Ethics Act. We will address the applicability and impact of Section 3(a) of the Ethics Act first. As a "public employee" you may not, while serving in this capacity with DER, use your public office or confidential information gained while in this position to secure financial gain for yourself, a member of your immediate family or a business with which you are associated. In this area, we have stated that an executive serving within the Governor's Exchange Program, for example, could not use information not generally available to the public or forward such information to his corporate employer for that corporation's gain. Likewise, we have indicated that under similar circumstances in the Governor's Exchange Program, a worker so exchanged could not use public employment to recommend action which might uniquely benefit his corporate - employer. See Baxter, supra. Margot Hunt, Director October 10, 1984 Page 5 The question is, however, whether while you are on loan from EPA the potential exists for you to use your DER position for your personal gain or that of any "business" with which you may be "associated ". We will assume that you are not "associated" with any entity other than with EPA because of the provisions of your IPA agreement. Even if you can be said to continue to be employed by EPA during this loan period, we find EPA is not a "business" as that tens is defined in the Ethics Act with relation to "for profit" entities and EPA is not such an entity. Likewise, we find that the potential for use of your DER post or confidential information obtained while on loan for your own gain is negligible. Indeed, because of the purpose and nature of this loan program, it can be expected that the sharing of information and experiences at and between DER and EPA would benefit the interests of each entity and the public. Under the unique provisions of this loan program as set forth by the IPA agreement and statute(s) authorizing same, we find no specific restrictions under Section 3(a) of the Ethics Act that would be appropriate or applicable. Moving to reviewing the question of the applicability and impact of Section 3(e) of the Ethics Act, it becomes clear that if you are a "public employee" while you are serving with DER, when you terminate your relationship with DER you become a "former public employe" subject to the restrictions and obligations set forth in Section 3(e) of the Ethics Act. Thus, when you terminate your relationship under this program with DER, you would face the restrictions set forth in Section 3(e) which prohibit you as a "former public employee" from appearing or representing any "person" before the "governmental body" with which you have been associated for a one -year period following your termination of service with DER. We must discern the "governmental body" with which you are associated while serving with DER. Given the scope of your responsibilities with DER, we must assume that you have been associated with DER, in general. Thus, with respect to any "person ", your actions vis -a -vis DER would be restricted for the first year after you leave your position with DER. If the "person" you serve after you leave DER is a private sector employer such as was present in Baxter, the same restrictions as articulated in Baxter and as further detailed here would apply. In general, if the restrictions of Section 3(e) apply we can provide you with some general outlines as to the scope of the nature of the restricted activity known as "representation ". The Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. Margot Hunt, Director October 10, 1984 Page 6 The Commission, furthermore, in its Opinions has also interpreted that the teen "representation" of a person as used in Section 3(e) of the Ethics Act to prohibit and to permit the following conduct: 1. Personal appearances on behalf of any person before the former governmental body are prohibited. This includes negotiating on contracts or renegotiating on contracts except that a former public employee may administer a contract that may exist or be awarded. 2. Attempts to influence the former governmental body on behalf of any person are prohibited. 3. General informational inquires to the governmental body and utilizing the knowledge and expertise gained through public employment are not barred. 4. Appearing in a third forum such as Federal or State Court is not barred. 5. Lobbying, that is representing the interests of any person before DER in relation to legislation, regulations, etc., is prohibited for the one -year period vis -a -vis DER. 6. The mere act of preparing and signing as preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal , contract, or bid, to be submitted to or reviewed by DER has been held to constitute an attempt to influence your formal governmental body. 7. Participating in any matters before DER on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by DER has also been held to be prohibited by Section 3(e) of the Ethics Act. However, given that you intend to return to your job with EPA after serving on loan with DER, we must also consider whether the same restrictions would apply to you if you were to represent EPA before DER. The essential elements in our review are whether EPA is a "person" (See Part II, above) whom you could not represent before DER and whether the Legislature could be said to have intended to apply the same restrictions in the unique circumstances of this DER -EPA exchange program as are clearly to be applied where a government employee leaves government and joins a private, profit - making enterprise. The Legislature defined a "person" who you would not be able to represent for one year after leaving DER, with reference to non - governmental entities, such as a business, a corporation, a union, etc. We believe the Legislature intended to prohibit your activity or ability to represent "persons" in the area most likely to occur and most likely to give rise to a conflict if it did occur, that is, where a government employee leaves and enters the private Margot Hunt, Director October 10, 1984 Page 7 sector. In such a situation, the former public employee's ability to use his or her prior experience, influence, etc. with the agency(s) he served to the new employer's financial advantage is apparent and the prospective private sector employer might be able and motivated to attempt to influence a public employee's judgment or conduct by the promise of future employment with the private sector employer. Where the post -DER employment is to be with EPA; however, these concerns are allayed or reduced because EPA cannot be expected to seek to influence DER or its employees in the same manner as a non - governmental "person" would. This is especially true where, as here, we are reviewing the circumstances of a ban or exchange program between governmental entities which are dedicated to the same objective of securing the public's best interests rather than private interests or profit. Thus, the restrictions of Section 3(e) as forth above would not be applicable should you, upon your return to EPA, be required to appear or represent EPA before DER. V. Conclusion: Under the unique factual circumstances presented by this "loan" program and the purpose of the Ethics Act, we conclude that you, while serving in this program should be considered a "public employee" within the coverage of the Ethics Act. This conclusion gives rise to the following duties and obligations: 1. You must file a Statement of Financial Interests as set forth in the Ethics Act for each year in which you serve under this program in this position and for the year following your termination of such service. 2. You must not utilize confidential information gained during your tenure with DER for your personal gain or for that of your immediate family or a business with which you are associated. Additionally, you may not transmit any such information to any member of your immediate family or business with which you are associated for the gain or advantage of said persons or entities. 3. If and when you become a "former public employee" upon your termination of service with DER you may not appear or represent any person, excluding or other than EPA, before DER for the one -year period after you leave DER. As outlined above more fully, the term "representing" includes the activities listed below: a. Personal appearances before DER; b. Negotiating on contracts with DER; c. Preparing, signing, and submitting bids or contract proposals to DER, including allowing your name to appear on such proposals as the preparer or proposed participant on contracts to be sent to or reviewed by DER. Margot Hunt, Director October 10, 1984 Page 8 d. Generally attempting to influence DER by lobbying that agency with respect to legislation, regulations, etc. e. Participating in any manner before DER on any case, matter, or contract over which you had supervision, direct involvement or responsibility while employed by DER. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /na By the C. mission, ERBE B. '1 NER Chairman cc: Nicholas DeBenedictis, Secretary, DER Dennis L. Farley, Director, Bureau of Personnel, DER