Loading...
HomeMy WebLinkAbout02-505 FabianADVICE OF COUNSEL Terry R. Fabian Deputy Secretary for Field Operations PA Department of Environmental Protection Rachel Carson State Office Building P.O. Box 2063 Harrisburg, PA 17105 -2063 January 14, 2002 02 -505 Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State Employee; Section 1103(i); Deputy Secretary for Field Operations; Pennsylvania Department of Environmental Protection. Dear Mr. Fabian: This responds to your letter of December 11, 2001, 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 Deputy Secretary for Field Operations following termination of service with the Pennsylvania Department of Environmental Protection. Facts: You currently serve as the Deputy Secretary for Field Operations for the Pennsylvania Department of Environmental Protection ( "DEP "), a position you have held since March 1994. As Deputy Secretary of Field Operations, you are responsible for the executive management and oversight of six regional offices that implement the regulatory programs for air, water, water supply, waste, storage tanks, radiation protection, and oil and gas management. The statewide programs for vector surveillance and control and emergency response also fall under your managerial authority. You have been offered employment as the Environmental Director for Allegheny Energy Supply, a generator of power at facilities in Pennsylvania and other states. In your new position, you would be responsible for directing and managing permitting, environmental compliance, and strategy group [sic], and leading the Environmental Services Unit of the Projects Division, which advises the company in its permitting activities and leads the effort to monitor and provide feedback to environmental agencies for proposed and existing environmental regulations. You would also be responsible for interfacing and negotiating with environmental regulators at the federal, state and local levels. Fabian, 02 -505 January 14, 2002 Page 2 You request an advisory defining any limits of contact with Commonwealth agencies in your new position. You state your understanding that you may not represent Allegheny Energy Supply directly in dealings with DEP for a limited period of time. In addition to your general inquiry, you pose the following specific questions: 1. Whether you may attend or participate in public meetings not specific to the activities of Allegheny Energy Supply, but rather of a general regulatory nature; 2. Whether you may conduct file reviews of any kind in any of the DEP offices; and 3. Whether you may attend meetings between Allegheny Energy Supply as an observer and not as an active participant. 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. As Deputy Secretary for Field Operations for DEP, you would be considered a public employee and an "executive -level State 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. Consequently, upon termination of public service, you would become a former public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: $1103. Restricted activities. (i) Former executive -level employee. - -No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. §1103(i). Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in Fabian, 02 -505 January 14, 2002 Page 3 question is a client of the new employer, rather than the new employer itself. See, Confidential Opinion No. 94 -011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for Allegheny Energy Supply provided and conditioned upon the assumptions that you did not actively participate in recruiting Allegheny Energy Supply to Pennsylvania, and that you did not actively participate in recruiting or inducing Allegheny Energy Supply to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to Allegheny Energy Supply. Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment. However, 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 ": $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 public employee is or has been associated" are specifically defined in the Ethics Act as follows: $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 Fabian, 02 -505 January 14, 2002 Page 4 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 /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 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 /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 No. 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you would be associated upon termination of public service is DEP in its entirety. Therefore, for the first year after termination of your service with, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DEP. Having set forth the restrictions of Section 1103(g) and Section 1103(i), your specific inquiries shall now be addressed. It is assumed for purposes of your first question that DEP employees would be present at the regulatory meetings. To the extent such meetings would be open to the public, you could attend the meetings; however, if your role would go beyond that of a general observer so that you would actually participate and /or advocate positions, not as a member of the general public, but as a representative of Allegheny Energy Supply, such representation would be prohibited. With regard to your second question, the Ethics Act would not prohibit you from conducting file reviews in any of the DEP offices conditioned upon the assumption that: 1) such files would be available to the general public; and 2) you would not be reviewing Fabian, 02 -505 January 14, 2002 Page 5 such files in an effort to indirectly influence DEP or to otherwise make known to DEP that you represent or work for Allegheny Energy Supply. As to your third question, you would be prohibited from attending meetings between Allegheny Energy Supply and DEP even if you would merely be an observer rather than an active participant, as such would constitute prohibited representation under Section 1103(g) of the Ethics Act. Based upon the facts which have been submitted, this Advice has addressed the applicability of Sections 1103(g) and 1103(i) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as rohibited 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 /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /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. Conclusion: Upon termination of service as Deputy Secretary for Field Operations with the Pennsylvania Department of Environmental Protection ( "DEP "), you would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Under Section 1103(i) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for Allegheny Energy Supply based upon the assumptions that you did not actively participate in recruiting Allegheny Energy Supply to Pennsylvania, and that you did not actively participate in recruiting or inducing Allegheny Energy Supply to open or expand a plant, facility, or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. With regard to Section 1103(), the restrictions as outlined above must be followed. The former governmental body would be DEP in its entirety. 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 complained of in reliance on the Advice given. This 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. Fabian, 02 -505 January 14, 2002 Page 6 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