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HomeMy WebLinkAbout00-609 ZimmerBenjamin E. Zimmer Director of Education Pennsylvania Rural Water Association 138 West Bishop Street Bellefonte, PA 16823 ADVICE OF COUNSEL September 21, 2000 00 -609 Re: Former Public Employee; Section 1103(g); Sanitarian Supervisor; Department of Environmental Protection. Dear Mr. Zimmer: This responds to your letter of July 27, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of a Sanitarian Supervisor following termination of service with the Commonwealth of Pennsylvania Department of Environmental Protection. Facts: On July 14, 2000, you retired from your position as Sanitarian Supervisor for the Commonwealth of Pennsylvania Department of Environmental Protection ("DEP "), Bureau of Water Supply Management. You now work as the Director of Education for the Pennsylvania Rural Water Association ( "PRWA "). PRWA's primary mission is to provide technical assistance and training to water and waste water systems across Pennsylvania. You have submitted job descriptions for both your former and current positions, which are incorporated herein by reference. You state that during your first year of employment with PRWA, you will not be negotiating, lobbying and submitting bid or contract proposals before DEP that are signed by you or contain your name, and no contracts between DEP and PRWA will contain your name. duties: However, as PRWA's Director of Education, you would perform the following 1. Meet with DEP representatives to: (a) Discuss the requirements and procedures for the DEP water and wastewater training approval process for the purpose of clarification (as to this duty, you state that you would not be negotiating or lobbying for charge); Zimmer, 00 -609 September 21, 2000 Page 2 (b) Discuss anticipated water and wastewater training needs as projected by pending regulatory changes and as determined by DEP field contact with water and wastewater systems; and (c) Plan and implement training partnerships between PRWA and DEP in which PRWA and DEP staff would work together to provide joint training to water and wastewater system personnel. 2. Present DEP- funded PRWA training programs to water and wastewater system personnel. You state that the contract for this training was executed before you were hired and does not contain your name. 3. Assist in executing contracts between DEP and PRWA requiring PRWA to provide water and wastewater system personnel training. You state that you would be expected to deliver this training. DEP staff would not be formally invited, but could attend, if they so chose. 4. Represent PRWA on the DEP Small Systems Technical Assistance Center ( "TAC ") Board. 5. Present PRWA training materials to DEP in person or through correspondence for evaluation to determine compliance with standards established for meeting educational "contact hours time" requirements and water and wastewater Operator Certification Regulations. You ask whether you would violate Section 1103(g) of the Ethics Act if you would perform the above job duties. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) 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. In the former capacity as a Sanitarian Supervisor for DEP, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa. Code §11.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before the governmental body with which he has been associated ": Zimmer, 00 -609 September 21, 2000 Page 3 Section 1103. Restricted activities (g) Former official or employee. - -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 Pa.C.S. §1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or employee is or has been associated" are specifically defined in the Ethics Act as follows: Section 1102. 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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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 Pa.C.S. §1102. The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits 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 pertain to a contract that existed prior to termination of public service. Shay, Opinion 91 -012. However, if such a pre - existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the Zimmer, 00 -609 September 21, 2000 Page 4 regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011. A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the ublic official /public employee may not be identified on documents submitted to the former governmental body. The public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Section 1103(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you have been associated upon termination of public service is DEP in its entirety, including but not limited to the Bureau of Water Supply Management. Therefore, for the first year after termination of your service with DEP, Section 1103() of the Ethics Act would apply and restrict "representation" of "persons" before DEP. Having set forth the restrictions of Section 1103(g), the propriety of performing the specific duties enumerated in the "Facts" above shall now be addressed. Reference shall be made to the duties by the numbered paragraphs in which they appear. With regard to your duties in paragraphs 1 (a) through (c), 4, and 5 as set forth above, you are advised that all such activities would be prohibited by Section 1103(g) because all would involve prohibited representation of your new employer before your former governmental body. As for your factual submission that you would not be "negotiating or lobbying for charge," be advised that the statutory definition of "represent" extends beyond negotiations and lobbying and includes "acting on behalf of any other person in any activity." 65 Pa.C.S. §1103(g) (Emphasis added). With regard to your duties in paragraph 2 as set forth above, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from presenting DEP- funded, PRWA training programs to water and wastewater system personnel as long as you would not engage in prohibited "representation" before DEP as outlined above. With regard to your duties in paragraph 3 as set forth above, which involve assisting in executing contracts between DEP and PRWA requiring PRWA to provide water and wastewater system personnel training, you are advised that Section p 103(g) would not prohibit such activity as long as you would not have any contacts with DEP staff that would constitute prohibited representation as delineated above. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee Zimmer, 00 -609 September 21, 2000 Page 5 and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /public 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. Lastly, 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 Governor's Code of Conduct. Conclusion: In your former capacity as a Sanitarian Supervisor with the Commonwealth of Pennsylvania Department of Environmental Protection ( "DEP "), Bureau of Water Supply Management, you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Upon termination of service with DEP, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. T he former governmental body is DEP in its entirety. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. 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 complaint of in reliance on the Advice given. The 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. Sincerely, Vincent J. Dopko Chief Counsel