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HomeMy WebLinkAbout95-012 BielickiSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn John R. Showers Boyd E. Wolff DATE DECIDED: 12/7/95 DATE MAILED: 12/15/95 95 -012 Richard J. Bielicki, P.E. 2703 Logan Street Camp Hill, PA 17011 Re: Former Public Official /Employee; Section 3(g); Director, Bureau of Abandoned Mine Reclamation; Renamed /replaced Agency; New Agency; Department of Environmental Resources; Department of Environmental Protection; Department of Conservation and Natural Resources; Appeal of Advice. Dear Mr. Bielicki: This Opinion is issued pursuant to the appeal of Advice of Counsel, No. 95 -613, issued on October 31, 1995. I. ISSUE: Whether and to what extent Section 3(g) of the Public Official and Employee Ethics Law, Act 9 of 1989, would restrict the Former Director of the Bureau of Abandoned Mine Reclamation following termination of service with the Department of Environmental Resources, an agency which has since been renamed /replaced by the Department of Environmental Protection and the Department of Conservation and Natural Resources. Bielicki, 95 -012 December 15, 1995 Page 2 II. FACTUAL BASIS FOR DETERMINATION: By letter received November 14, 1995, you have timely appealed Advice of Counsel, No. 95 -613, issued on October 31, 1995. The appeal of Advice did not delineate the nature of your objection to the Advice of Counsel other than to indicate the exercise of your right to appeal and to request a personal appearance before the Commission for the purpose of challenging the Advice of Counsel. By letter dated November 20, 1995, you were notified of the date, time and location of the public meeting. In your initial request for an advisory you provided facts which may be fairly summarized as follows. From October, 1983, to May, 1995, you served the Commonwealth of Pennsylvania as the Director of the Bureau of Abandoned Mine Reclamation (BAMR) for the Department of Environmental Resources (DER). You note that during the entire time of your employment with DER it was known as DER. The Bureau of Abandoned Mine Reclamation (BAMR) was, you felt, unique within DER in that it did not enforce regulations or laws and did not issue permits. The main function of BAMR was to contract for government funded land and water reclamation contracts, while you feel that the main function of most bureaus within DER was to permit, inspect and enforce universal compliance with environmental laws and regulations. You now wish to provide compensated consulting services to government contractors, a function which could require you to interface with the government contracting agency. You indicate that you would generally be representing the contractor in disputes over work items, payments, contract schedules and similar issues. You would offer services of an engineering nature which are most directly related to skills and experiences you have acquired through education and employment prior to your position with BAMR /DER. Your initial letter of request sought a ruling as to your legal ability to provide compensated consulting services to contractors working for the Commonwealth of Pennsylvania, BAMR and /or the Department of Environmental Protection (DEP) -- one of the two agencies which performs functions formerly performed in the name of DER (See, Act 18 of 1995). You additionally posed the following specific inquiries: (1) Whether during the one -year period you may provide the above - stated consulting services to contractors of any government agency; (2) Whether during the one -year period you may provide the services to contractors of any government agency with the exception of BAMR, as to which inquiry you proffer that Bielicki, 95 -012 December 15, 1995 Page 3 since BAMR was atypical of DER bureaus, you feel that providing these services to other DER -DEP bureaus would appear to meet the requirements of the conflict of interest statutes; (3) Whether during the one -year period you may provide these services to contractors of any government agency with the exception of DER, as to which inquiry you state that since DER no longer exists, you seek guidance from the Commission on how to address this problem; (4) Whether during the one -year period you may provide these services to contractors of any government agency with the exception of DEP, as to which specific inquiry you note that DEP assumed some of the functions of the former DER; (5) Whether, during the one -year period, you may provide the services to contractors of any government agency with the exception of DCNR, (the Department of Conservation and Natural Resources), as to which specific inquiry you note that DCNR assumed some of the functions of the former DER; (6) Which, if any, government agencies you would be prohibited from appearing before as a compensated consultant during the one -year period; (7) Whether you may appear before any of the agencies in an uncompensated status (except for direct expenses), that you would be prohibited from appearing before in a compensated status; and finally, (8) Whether there are any other prohibitions, exclusions, or other matters of which you should be aware. Finally, we note that in your most recent letter dated November 30, 1995, you have objected to the application of the Ethics Law in a situation where the public employee has been involuntarily terminated. Our review of this matter is de novo. III. DISCUSSION: It is clear, and you do not appear to dispute the fact, that in your former capacity as the Director of the Bureau of Abandoned Mine Reclamation (BAMR) for the Department of Environmental Resources (DER), you were a "public employee" subject to the provisions of the Public Official and Employee Ethics Law. It is equally clear that upon termination of your aforesaid position, you Bielicki, 95 -012 December 15, 1995 Page 4 became a "former public employee" subject to the restrictions of Section 3(g) of the Ethics Law, which restrictions apply for one (1) year following termination of such service. Section 3(g) of the Ethics Law provides as follows: Section 3. Restricted activities (g) 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 P.S. §403 (g) . The term "governmental body with which a public official or public employee is or has been associated" is defined in the Ethics Law as follows: 65 P.S. §402. Section 2. Definitions "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 Advice of Counsel concluded that upon termination of your service with DER, your former governmental body would include DER in its entirety, including but not limited to BAMR, and that in light of the subsequent "split" of DER, the restrictions would apply as to DEP and DCNR. As to the first of the above conclusions, that your former governmental body would not be limited to BAMR, we must agree with the Advice of Counsel. On its face, the above definition of "governmental body with which a public official or public employee is or has been associated" specifically is not limited to subdivisions or offices within the governmental body but includes the entire governmental body. This interpretation of the clear and obvious meaning of the statutory language is confirmed by the legislative history which is cited and quoted in the Advice of Counsel. We would merely note that in our view, the statutory language is not ambiguous, but that even if it were, reference to Bielicki, 95 -012 December 15, 1995 Page 5 the legislative history is an appropriate manner by which to resolve any ambiguity. See, Statutory Construction Act of 1972, 1 Pa.C.S. §1921(c)(7). Thus, at the point in time at which you terminated your employment with DER, your former governmental body included all of DER, not just BAMR. As to the second conclusion of the Advice of Counsel set forth above, that Section 3(g)prohibitions would apply to each of the two agencies which now exist through the renaming /replacement of DER, specifically, the Department of Environmental Protection (DEP) and the Department of Conservation and Natural Resources (DCNR), it is our view that the Advice of Council was correct in that regard as well. We direct your attention to your fourth and fifth specific inquiries in your initial request for an advisory. In those questions you represented to this Commission, and it is our understanding as well, that DEP and DCNR each assumed some of the functions formerly performed in the name of DER (See, Act 18 of 1995). At the point at which you terminated your Commonwealth employment, your former governmental body was DER. Given the subsequent renaming /replacement of DER, we must trace the former governmental body to the agencies which now embody it. Thus, the restrictions of Section 3(g) would apply to restrict you as to DEP and DCNR in their entireties. As to our interpretations of the restrictions of Section 3(g), they have been so often recited that we see no need to reiterate them again. We have reviewed the Advice of Counsel and are satisfied that it accurately apprises you of the nature of the Section 3(g) restrictions and of certain important Commission precedents pertaining to Section 3(g), with one correction. Page 6 of the Advice of Counsel cited Shay, Opinion 91 -012, for the precedent that Section 3(g) would prohibit 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 pertained to a contract which existed prior to termination of public service. In Abrams /Webster, Opinion 95 -011 decided this date, we modified the Shay Opinion. As to a former PennDOT "Civil Engineer," we held that in the event of work performed for his new private employer on a PennDOT contract already awarded and not involving his old PennDOT district, his name could appear on routine invoices if required by the regulations of the agency to which the billing was to be submitted. We adopt and incorporate herein by reference the Advice's recitation of the Section 3(g) restrictions with the one noted correction. We now turn to your specific inquiries. In response to your first five specific inquiries, assuming that you would not be using any confidential information obtained as a result of your former public position, you may provide your Bielicki, 95 -012 December 15, 1995 Page 6 services to contractors of any government agency but with regard to any prospective "interfacing" with an agency, your conduct must comply with Section 3(g) as to your former governmental body (DER, DEP, DCNR) . In response to your sixth specific inquiry, the restrictions of Section 3(g) apply to restrict you only as to your former governmental body. In response to your seventh specific inquiry, Section 3(g) only applies where the representation is for promised or actual compensation. You suggest some payment of "direct expenses," which may constitute "compensation" depending upon the circumstances. We recommend that as specific situations arise, you seek further advice from the State Ethics Commission in this regard. Your eighth inquiry generally seeks additional information. We find the Advice of Counsel to be satisfactory in that regard, with the one correction as to Shav, Opinion 91 -012, noted above. Finally, we note that Section 3(g) as promulgated does not include any exception for involuntary terminations. The appeal is denied. Advice of Counsel, No. 95 -613 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: The former Director of the Bureau of Abandoned Mine Reclamation (BAMR) for the Department of Environmental Resources (DER) is a "former public employee" subject to the restrictions of Section 3(g) of the Public Official and Employee Ethics Law, Act 9 of 1989. The restrictions of Section 3(g) apply for one year following termination of the aforesaid public service. The former governmental body is DER, including but not limited to BAMR, and the agencies which exist through the renaming /replacement of DER, specifically the Department of Environmental Protection (DEP) and the Department of Conservation and Natural Resources (DCNR). The restrictions of Section 3(g) apply as to representation before the former governmental body only. The restrictions are accurately set forth in the Advice of Counsel, No. 95 -613, with one correction noted above, and must be observed. The appeal is denied. Advice of Counsel, No. 95 -613 is affirmed. Bielicki, 95 -012 December 15, 1995 Page 7 Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, 66 Daneen E. Reese Chair