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HomeMy WebLinkAbout86-002 DeBenedictisHonorable Nicholas DeRenedictis Secretary Department of Environmental Resources P.O. Box 2063 Harrisburg, Pennsylvania 17120 Dear Secretary DeRer,edictis: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 May 1, 1986 OPINION OF THE COMMISSION 86 -002 Re: Contracting, Advisory Committee, Low Level Radioactive Waste This responds to your letter of February 14, 1986, wherein you. requested the opinion of the State Ethics Commission. Whether the employer of a member of an Advisory Committee in the Department of Environmental Resources may bid on and obtain a contract with the Department. Pursuant to the Radiation Protection Act, the Department of Environmental Resources has the power to establish special advisory committees as may be necessary to assist the department in drafting and implementing rules, regulations and programs regarding radioactive waste in the Commonwealth of Pennsylvania. The members of such committees may be reimbursed by the department for reasonable and necessary expenses incurred in connection with their duties as approved by the secretary of the department. 35 P.S. &7110.301(14). Pursuant to the above authority, the Department of Environmental Resources has established a Public Advisory Committee on low -level radioactive waste. This committee is purely advisory in nature and consists of sixteen individuals selected by local government, environmental, health, engineering, husiness, and public interest groups. The primary task of this committee is to assist the department in developing site suitahility criteria and disposal technology performance criteria. The committee has at this time, no final approval authority and may only make recommendations in relation to the aforementioned matters. Hon. Nicholas DeBenedictis May 1, 1986 Page 2 In addition to the foregoing, the Pennsylvania Legislature has recently adcpted the Appalachian States Low -Level Radioactive Waste Compact. See Act No. 1985 -120. Pursuant to this enactment, there is to be created a regional commission, the primary purpose of which is to conduct research, establish regulations, and generally promote a reasonable reduction of the volume of low -level radioactive waste generated in the region and to further insure that such waste is disposed of in a safe manner. You have advised that in accordance with this legislation, the Commonwealth would be required to develop a low -level radioactive waste disposal site. In order to develop this site, the department envisions the need to select an environmental consulting firm to perform site screening studies under contract with the department. There will also be the need to select a disposal site operator which will then be regulated by the department. Several members of the public Advisory Committee have expressed a concern as to whether their membership on this committee would disqualify their firm or private employer from either bidding on the site screening contract or for serving as a consultant to the potential site operator. You note that the advisory committee may be requested to review draft request for proposal documents prior to said documents being officially rel eased for bid. You advised that all information sent to the advisory committee, i n this respect, i s considered public information when released for their review. You have requested the opinion of the State Ethics Commission as to whether any prohibitions are placed upon the members of the Public Advisory Committee, or the firms employing said members, i n light of the above factual ci rcumstances. III. Discussion: Initially, it should be noted that the State Ethics Commission may only address the question presented within the purview of the State Ethics Act. The Commission may not address other Codes of Conduct such as the State Adverse Interest Act or the Governor's Code of Conduct. Additional advice, in relation to said enactments, may be obtained from the appropriate governing authority as will be set forth below. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holdi ng publi c 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(a). Hon. Nicholas DeBenedictis May 1, 1986 Page 3 Within the above provision of law, no public official or public employee may use their public position in order to obtain any financial gain for themselves or for a business with which they are associated. The State Ethics Act further defines business with which one is associated as follows: Section 2. Definitions. 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. From the foregoing factual circumstances, it appears as though the members of the Public Advisory Committee are associated with businesses as set forth in the State Ethics Act. The key question to be addressed, however, is whether the members of this committee are public officials within this provision of the State Ethics Act. The State Ethics Act defines public official as follows: Section 2. Definitions. "Public official ." Any elected or appointed official i n the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. [ "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses.] 65 P.S. 402. (As amended by Snider v. Thornburgh, 469 Pa. 159, 1981). As is clear, the definition of public official excludes members of advisory boards that have no authority to expend public funds other than reimbursement for personal expenses or who otherwise do not have the power to exercise the authority of the Commonwealth. Pursuant to the enabling legislation that has resulted in the establishment of the Public Advisory Committee on low -level radioactive waste, this committee is purely advisory in nature. We will assume, for the purpose of this opinion, that the committee also has no power to expend public funds or otherwise exercise the authority of the Commonwealth. As a result, it does not appear as though the members of this committee would be public officials within the purview of §403(a) of the State Ethics Act. See Bryer, 85 -007; Hollander, 80 -073; Mulder, 83 -008. Hon. Nicholas DeBenedictis May 1, 1986 Page 4 The State Ethics Commission has, however, reviewed situations similar to the instant one within the purview of §403(d) of the State Ethics Act. That provision of law allows the Commission to address other areas of possible conflict. See 65 P.S. §403(d). In its opinion in Kelmeckis, 80 -047, the State Ethics Commission reviewed the issue of whether members of the Pennsylvania Hazardous Waste Facility Planning Advisory Committee would be precluded from bidding upon and obtaining state contracts related to certain waste disposal. While the Commission ruled, as we do here, that the members of said committee are not public officials within §403(a) of the State Ethics Act, the Commission did indicate that the members of that committee should restrict their activities so as not to create a conflict of interest within §403(d) of the State Ethics Act. In that situation, as in the instant matter, the committee was responsible for developing criteria to be utilized when selecting firms to perform work in relation to the disposal of certain waste. Here, the primary task of the Public Advisory Committee on low -level radioactive waste is to assist the department in developing site suitability criteria and disposal technology performance criteria. The Ethics Commission in Kelmeckis, determi ned that the public has the right to be assured that the member's representation on this committee does not result in specific economic gain or advantage for the particular firm with which they are employed. Depending upon the duties, functions and authority of the committee, as currently established or as will be set forth in the future, various restrictions may be imposed upon the committee members. For example, if the committee must develop criteria in order to insure the proper performance of the company selected to participate in the waste disposal or if criteria must be developed by the committee in order to choose a suitable disposal site, a committee member must abstain from participating in such matters if a particular recommendation would result in an economic advantage to his private employer. Likewise, during or after his service on the committee, said committee member must not use any confidential information gained through service on the committee in order to obtain financial gain for himsel or for the firm by which he is employed. Generally, as can be observed from the foregoing, the primary concern is that the members of the committee not recommend or attempt to implement criteria or standards that can only be met by that member's employer, thereby resulting in a contract being awarded to that firm. Generally, under the State Ethics Act, there would be no absolute prohibition on the employer of the committee members from submitting bids to obtain the site screening contract or the contract as consultant to the site operator. You have not indicated in your letter of request what, if any role, the committee will play in reference to the award of said contracts. In the event that this committee must play some role in the final award of the contract, or i n reviewing, recommending or choosing the firm that will perform the various services required, then the member of said committee must abstain from participating in the committee's action in relation to said contract. In Hon. Nicholas DeBenedictis May 1, 1986 Page 5 this way, the member of the committee would not be called upon to take any action in relation to his private employer. Similarly, it would be the better practice for said committee members to refrain from acting generally upon the award of the contract to any firm if his employer is one of the bidders. This is so in light of the fact that negative votes for other companies may be perceived as an attempt to eliminate competi ng companies. Finally, as previously noted, the State Ethics Commission generally does not have the jurisdiction to interpret other codes of conduct. The Commission has, however, i n the past reviewed other provisions of law insofar as they have impact upon the Ethics Act and matters clearly within the jurisdiction of the Ethics Commission. See, McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1983); Bigler, 85 -020, Weaver, 85 -014. In the current situation, because the members of the advisory board are not within the definition of public official as previously set forth, we need not interpret any other provision of law. We do, however, feel obligated to point out that certain provisions of the State Adverse Interest Act may be applicable in the instant situation, and the members of the Committee may need to seek the advice of an appropriate authority in relation thereto. The specific provision of that Act that may be applicable, provides that: Adverse interest of state advisor or consultant: No State advisor or State consultant having recommended to the State agency which he serves, either the making of a contract or a course of action of which the making of a contract is an express or implied part, shall, at any time thereafter, have an adverse interest in such contract. 71 P.S. §776.3 "State Advisor." A person who performs professional, scientific, technical or advisory service for a State agency or serves as a member of an advisory board, professional licensing board or similar part of a State agency and who receives no compensation for his service other than reimbursement for expenses incurred by him in furnishing such service. 71 P.S. §776.2 (7). As noted, we are not implying that the above provisions place any restrictions upon the proposed activity but are merely pointing out the existence of said provisions in order to be complete. Hon. Nicholas DeBenedictis May 1, 1986 Page 6 VI. Conclusion: Members of the Public Advisory Committee on low -level radioactive waste are not public officials within the definition of §403(a) and 402 of the State Ethics Act. As such, the general provisions of the State Ethics Act are not applicable to said committee members. The State Ethics Commission, however, pursuant to the authority vested in it to address other areas of possible conflict, advises that in the event that committee members can influence, benefit, improve, or in any way enhance the ability of their employer to obtain a financial gain through their position on the committee, such members must refrain from participating in said matter. Generally, there is no absolute or per se prohibition upon the firm employing said committee members bidding upon and receiving contracts with the Department of Environmental Resources. Said committee members may not use any confidential information obtained in their service as a committee member in order to obtain any fi nanci al gain for their empl oyi ng firms. Fi nal ly, i n the event that the committee has any affirmative role in the selection of 'the firm that will be under contract with the department, said committee members should abstain from participating in said matter, either through approving the award of such contract or voting against competitors of his private employer. In the event that abstention is required, the member should publicly disclose his abstention, the reasons therefor, and have such appropriately recorded. 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 i n any civil or crimi nal proceedi ng, providi ng the requester 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 reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, y� S!J a�rvt.CrDti� G. Sieber Pancoast Chairman