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HomeMy WebLinkAbout98-001 ZieglerOPINION OF THE COMMISSION Glen D. Ziegler 435 South 3rd Street Apartment 1 Lemoyne, PA 17043 Dear Mr. Ziegler: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Boyd E. Wolff Julius Uehlein DATE DECIDED: 1/15/98 DATE MAILED: 1/26/98 98 -001 Re: Former Public Employee; Section 3(g); Mining Engineer I; Department of Environmental Protection, Bureau of Deep Mine Safety; Appeal of Advice. This Opinion is issued pursuant to your appeal of Advice of Counsel, No. 97- 621 which was issued on October 22, 1997. Whether the Public Official and Employe Ethics Law presents any restrictions upon employment of a Mining Engineer I following termination of service with the Commonwealth of Pennsylvania, Department of Environmental Protection. II. FACTUAL BASIS FOR DETERMINATION: By letter dated November 12, 1997, received November 17, 1997, you timely appealed Advice of Counsel No. 97 -621, issued October 22, 1997. Ziegler, 98 -001 January 26, 1998 Page 2 In your initial letter requesting an advisory, you provided facts which may be fairly summarized as follows. You were previously employed as a Mining Engineer 1 with the Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), in the Bureau of Deep Mine Safety. You decided to change careers. Since June 16, 1997, you have been employed as a computer consultant with Transfer Technology, a computer consulting firm. Your initial assignment with Transfer Technology was with Hershey Foods Corporation. However, at the time of your inquiry, that assignment with Hershey was about to be completed. The majority of Transfer Technology's work is with DEP. Transfer Technology has an existing five year computer consulting contract with DEP, which contract is now in its third year. Pursuant to the contract, Transfer Technology provides computer help desk services, network support, year 2000 support, and the like. You specifically asked whether, pursuant to the Public Official and Employe Ethics Law, you could become part of the Transfer Technology team which works at DEP. If you would become part of that particular team, you would be working at DEP's Harrisburg Central Office, but you would report directly to the Transfer Technology project manager. You indicated that you would have absolutely no ability to influence any business, provide useful contacts, or provide any proprietary information. Finally, you noted that the Bureau of Deep Mine Safety (the specific Bureau for which you worked while employed by DEP) is no longer at DEP's Harrisburg Central Office. You stated that if you would be precluded from working at DEP, your employment opportunities would be severely limited when your work at Hershey would end. You sought a ruling from this Commission in this matter. Specifically, you asked that a "variance to the policy" be granted, in support of which you cited Webster, Opinion No. 95 -01 1. In addition to the facts which you submitted, the job classification specifications for your former position with DEP were obtained and were incorporated by reference within the Advice of Counsel. They are likewise incorporated herein by reference. Advice of Counsel, No. 97 -621 concluded that you are a "former public employee" subject to the restrictions of Section 3(g) of the Ethics Law. The Advice of Counsel outlined those restrictions which would apply to you as a former public employee for the first year following your termination of employment with DEP. The Advice stated that your former governmental body would be DEP in its entirety, including but not limited to the Bureau of Deep Mine Safety. Ziegler, 98 -001 January 26, 1998 Page 3 In addressing your specific inquiry and your request for a "variance to the policy," Advice of Counsel, No. 97 -621, stated as follows: As a practical matter, it would appear to be impossible for you to function as part of Transfer Technology's team at DEP without running afoul of Section 3(g). You could not provide such consulting services to DEP at DEP's Harrisburg Central Office without engaging in prohibited representation of your new employer before DEP. As for the fact that the Bureau of Deep Mine Safety has been eliminated from DEP's Harrisburg Central Office, as noted above, the Section 3(g) restrictions apply as to DEP in its entirety — not merely as to the Bureau of Deep Mine Safety. As for your request for a "variance to the policy" such as you perceive to have been granted in Webster, Opinion No. 95 -01 1, you are advised that Mr. Webster was not granted a "variance" and in fact, there are no "variances" to the applicability of Section 3(g). Furthermore, in Webster, Opinion No. 95 -01 1, the Commission did not allow Mr. Webster to perform his new, private employment duties at a work site of his former governmental body. Rather, ... the Commission simply held that where there was a pre- existing contract that did not involve the unit where Mr. Webster as a former public employee had worked, his name could appear on routine invoices submitted by his new employer if required by the agency regulations. Mr. Webster was in fact still required to comply with the Section 3(g) restrictions. Similarly, you must comply with Section 3(g), and during the one -year period of its applicability, you may not perform computer consulting work for your new private employer at DEP. Ziegler, Advice of Counsel No. 97 -621 at 4. In the letter by which you appealed the Advice of Counsel, you did not delineate the nature of your objection. Rather, you simply indicated that you were exercising your right to appeal and that you were requesting a personal appearance before the Commission for the purpose of challenging the Advice of Counsel. By letter dated December 31, 1997, you were notified of the date, time, and location of the public meeting at which your appeal was to be considered. At the public meeting on January 15, 1998, you appeared and offered commentary, which may be fairly summarized as follows. You left DEP in June of 1997 at which time you went to work for Transfer Technology. Your initial assignment at Hershey has ended and you are now off work. Ziegler, 98 -001 January 26, 1998 Page 4 You are primarily seeking a variance from the applicability of Section 3(g). You question whether Section 3(g) was intended to apply to people like you, who are in situations like yours. You suggest that based upon the spirit in which Section 3(g) was written, perhaps it should not pertain to you. You note that while you were with DEP, you were a Mining Engineer I with the Bureau of Deep Mine Safety. If allowed to work on the Transfer Technology team at DEP, you would be coming back in a different capacity, as a computer consultant. You state that you fail to realize how ethically that would be wrong, or how you could provide any unfair advantage to anyone. If you would be allowed to become part of Transfer Technology's Team working at DEP, you would be in a "help desk support role" whereby you would provide technical support to computer users pursuant to an existing contract that will run for an additional two and one half years. You state that you cannot influence DEP as to retaining that contract. You acknowledge that in the event of a dispute between Transfer Technology and DEP, it would be possible for you to become involved on behalf of transfer Technology, although you state that you would not be directly responsible. In sum, you feel that you have no influence such as would have been contemplated by the promulgation of Section 3(g). You ask whether the Section 3(g) restrictions as set forth in Advice of Counsel, No. 97 -621 "paint too broad a picture" as to where "the line" should be drawn. Our review of this matter is de novo. III. DISCUSSION: It is clear that in your former capacity as a Mining Engineer I for the Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), you were a "public employee" subject to the provisions of the Public Official and Employe Ethics Law ( "Ethics Law "). Our review of the job classification specifications for your former position confirms that conclusion. See also, 51 Pa.Code §11.1 "public employee" (iv)D. It is equally clear that upon termination of your aforesaid position with DEP, you became a "former public employee" subject to the restrictions of Section 3(g) of the Ethics Law which 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 Ziegler, 98 -001 January 26, 1998 Page 5 65 P.S. §403(g). with which he has been associated for one year after he leaves that body. 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: 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. 65 P.S. §402. The term "represent" is defined under the Ethics Law as follows: Section 2. 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. 65 P.S. §402 (Emphasis added). Based upon our review, the Advice of Counsel properly concluded that your former governmental body is all of DEP and not merely the Bureau of Deep Mine Safety where you served. This conclusion is not only based upon the clear and obvious meaning of the statutory language but upon 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 even if it were, reference to 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, your former governmental body includes all of DEP, not just the Bureau of Deep Mine Safety. As for our interpretations of the restrictions of Section 3(g), they have been so often recited that we see no need to reiterate them herein. We have reviewed the Advice of Counsel and are satisfied that it accurately apprised you of the nature of the Ziegler, 98 -001 January 26, 1998 Page 6 Section 3(g) restrictions and of certain important Commission precedents pertaining to Section 3(g). We adopt and incorporate herein by reference the Advice's recitation of the Section 3(g) restrictions and related precedents. Turning to the specific inquiry which you pose, we similarly conclude that the Advice of Counsel provided an accurate and complete response. Since working on Transfer Technology's team at DEP would require you to be physically present at DEP's Harrisburg Central Office, it would be impossible for you to perform the functions of that position without transgressing Section 3(g). Working on behalf of Transfer Technology at DEP's Harrisburg Central Office would necessarily result in prohibited representation of your new employer, Transfer Technology, before your former governmental body, DEP. Furthermore, given that the governmental body with which you have been associated includes all of DEP, the fact that the particular Bureau where you previously worked has been removed from the said Harrisburg Central Office location is legally irrelevant. Finally, the Advice of Counsel accurately noted that there are no "variances" to Section 3(g). As a former public employee, these restrictions of Section 3(g) apply to you. This Commission does not have the authority to create "exceptions" which do not exist by statute. Richardson, Opinion No. 93 -006. You misperceive our holding in Webster, Opinion No. 95 -01 1. We did not create a "variance" or "exception" for Mr. Webster. We clearly stated that Mr. Webster was in fact subject to the Section 3(g) restrictions. We simply held that where there was a pre- existing contract that did not involve the particular unit where the former public official /public employee had worked, that individual's name could appear on routine invoices submitted by his new employer to his former governmental body if required by that agency's regulations. We commend you for coming before this Commission for an advisory. We also commend you for the presentation that you made to this Commission. You capably articulated your position, and we are certainly not insensitive to your situation. Nevertheless, this Commission is duty -bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section 3(g) restrictions to apply to a ll former public officials /public employees. There is no mention in the statute of any "variances" or "exceptions." Obviously, the facts in any given case may be more or less compelling than in others, but the law must be applied fairly and uniformly. Advice of Counsel, No. 97 -621 is affirmed. So that there is no misunderstanding, we would emphasize that Section 3(g) would not preclude you from working for your present employer, Transfer Technology. However, Section 3(g) would prohibit you from working on Transfer Technology's team at DEP until the one year period of applicability of Section 3(g) has expired. Ziegler, 98 -001 January 26, 1998 Page 7 The propriety of the proposed conduct has only been addressed under the Ethics Law. Specifically not addressed herein is the Governor's Code of Conduct. IV. CONCLUSION: A former Mining Engineer I for the Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), is a "former public employee" subject to the restrictions of Section 3(g) of the Public Official and Employe Ethics Law, Act 9 of 1989. The restrictions of Section 3(g) apply for one year following termination of public service. The former governmental body is DEP in its entirety, including but not limited to the Bureau of Deep Mine Safety. The restrictions of Section 3(g) are accurately set forth in Advice of Counsel, No. 97 -621, which restrictions must be observed. Advice of Counsel No. 97 -621 is affirmed. 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. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, Daneen E. Reese Chair Commissioner Austin M Lee, Vice Chair dissents.