Loading...
HomeMy WebLinkAbout02-581 WascavageGerald W. Wascavage 101 Poplar Drive Kulpmont, PA 17834 ADVICE OF COUNSEL August 1, 2002 02 -581 Re: Former Public Employee; Section 1103(g); Solid Waste Program Specialist Supervisor; Department of Environmental Bureau of District Mining Operations; Permitting Section Division. Dear Mr. Wascavage: This responds to your letters of June 20, 2002, and June 28, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., presents any restrictions upon employment of a Solid Waste Program Specialist Supervisor following termination of service with the Commonwealth of Pennsylvania Department of Environmental Protection. Facts: As of July 12, 2002, you will be retiring from employment as a Solid Waste Warn Specialist Supervisor with the Commonwealth of Pennsylvania Department of Environmental Protection ( "DEP "). You have submitted a copy of your job description and Identification of Essential Job Functions /ADA, which documents are incorporated herein by reference. Per your job description, your duties with DEP have included, inter alia, the following: directing and supervising technical section staff, including but not limited to mining engineers and mining specialists, who are involved in permit reviews and other technical services; planning, directing and coordinating the review of permitting actions pertaining to certain mining- related matters; directing, coordinating and supervising all of the technical services for the Mine Subsidence Insurance program within the anthracite coal mining region as provided to the Wilkes -Barre Mine Subsidence Insurance Office by the Pottsville District Office technical staff; assisting the Monitoring and Compliance Manager in the coordination of monitoring and inspection activities; developing, implementing, and /or maintaining permit application tracking systems, and producing reports of permit review performance; representing the District Mining Office and DEP in public meetings with coal operators, legislators and environmental groups; performing necessary supervisory functions relating to leave, overtime, discipline, grievances, and performance evaluations; interviewing prospective employees and Wascavage, 02 -581 August 1, 2002 Page 2 recommending employee selection; and evaluating the educational and training needs of subordinates and requesting any needed education and training for such subordinates. Further, as per the job description, in your supervisory position, you have the responsibility of assigning citizen complaints, public hearings, and /or litigation actions to subordinates. During the latter art of your employment with DEP, you have been assigned to the Pottsville District Office of District Mining Operations, where you have been primarily involved with the review of coal and industrial mineral permit applications. In addition, you were responsible for serving as a moderator or facilitator for required public hearings relating to permit applications before DEP. You are interested in continuing to moderate or facilitate permit application public hearings following your retirement, upon DEP's request. You state that in this capacity, you would have no involvement in the issuance or denial of a requested permit, but would merely conduct a hearing and write a report to the assigned reviewer to memorialize noted citizen concerns and /or objections. Based upon the above, you seek guidance from the State Ethics Commission as to how the post - employment restrictions of the Ethics Act would apply to you with regard to the proposed activity. 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 a Solid Waste Program Specialist Supervisor for the Department of Environmental Protection ("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 de 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 would become 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 ": § 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. Wascavage, 02 -581 August 1, 2002 Page 3 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 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, 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 former public official /public employee may not be identified on documents submitted to the former governmental body. The former public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once Wascavage, 02 -581 August 1, 2002 Page 4 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 would be deemed to have been associated upon termination of public service would be DEP in its entirety including, but not limited to, the Bureau of District Mining Operations, Permitting Section Division. Therefore, for the first year after termination of service with DEP, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DEP. Having set forth the above general principles, the specific activity which you have proposed shall be addressed. You are interested in continuing to moderate or facilitate permit application public hearings following your retirement, upon DEP's request. You do not indicate what the nature of your relationship with DEP would be in performing such services. It would seem that you might be considering three types of arrangements: (1) performing such services without compensation; (2) performing such services for compensation under the 95 -day program which allows annuitants to work up to 95 days per fiscal year under certain conditions (see, 71 Pa.C.S. § 5706(a.1); McGlathery, Opinion 00 -004 ); or (3) performing such services for compensation as an independent contractor. Each of these arrangements shall be considered. First, you are advised that Section 1103(g) of the Ethics Act would not preclude you from performing such services free of charge, because Section 1103(9) only applies to restrict a former public official /public employee when the representation before the former governmental body is with "promised or actual compensation." 65 Pa.C.S. § 1103(g). Second, based upon the assumptions that in performing these duties you would continue to meet the criteria for status as a "public employee" and that you would otherwise qualify for participation in the program, Section 1103(g) of the Ethics Act would not preclude you from performing such services for compensation under the aforesaid 95 -day program which allows annuitants to work up to 95 days per fiscal year. Section 1103(g) does not prohibit the rehiring of the former public employee provided that a true public employment relationship exists. See, McGlathery, supra; Long, Opinion 97 -010; Confidential Opinion, 93 -005. However, each time you would enter the 95 -day program, you would become a "public employee" again, and each time you would terminate your service under that program, you would once again became a former public employee subject to the restrictions of Section 1103(g). McGlathery, Opinion 00 -004. You are cautioned that the restrictions of Section 1103(g) would apply for a full one -year period each time you would become a former public employee. Id. Thus, as a result of participation in the 95 -day program, the one -year period of applicability of Section 1103(g) would begin anew each time you would terminate participation in the 95 -day program. Wascavage, 02 -581 August 1, 2002 Page 5 Finally, you are advised that Section 1103(g) of the Ethics Act would preclude you from performing such services for compensation as an independent contractor. To perform such services as an independent contractor would transgress Section 1103(g) because it would necessarily involve prohibited representation before your former governmental body (for example, through personal appearances before your former governmental body or the submission of written documents containing your name to assigned reviewers" who would clearly be DEP staff members). See, Confidential Opinion, 97 -008; Confidential Opinion, 97 -007; Confidential Opinion, 93005. 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) oft the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment 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: As a Solid Waste Program Specialist Supervisor for the Z;ommonwealth of Pennsylvania Department of Environmental Protection ( "DEP "), Bureau of District Mining Operations, Permitting Section Division, 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 would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be DEP in its entirety including, but not limited to, the Bureau of District Mining Operations, Permitting Section Division. 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 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. Wascavage, 02 -581 August 1, 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