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HomeMy WebLinkAbout80-047 KelmeckisVal J. Kelmeckis, Director Analytical Laboratory Hess & Fisher Engineers, Inc. 36 North Second Street Clearfield, PA 16830 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 14, 1980 OPINION OF THE COMMISSION 80 -047 RE: Contracting; Advisory Board Dear Mr. Kelmeckis: I. Issue: You request clarification on the following questions; A. Would a member of the Pennsylvania Hazardous Waste Facility Planning Advisory Committee be a "public official" covered by the Ethics Act? B. If so, would appointment as a member preclude that individual or his firm from obtaining a state contract, either during his appointment or following the disbandment of the committee, if that work or contract was the result of a direct recommendation of the committee or otherwise related to the Solid Waste Management Act? II. Factual Basis for Determination: It would appear that you may be considering or are being considered for appointment to the Hazardous Waste Facility Planning Advisory Committee (hereinafter the Committee). You are also the Director of the Analytical Laboratory of a professional engineering firm which may engage in consulting and /or contracting with the Common- wealth in general, and /or the Department of Environmental Resources (DER) in particular. III. Applicable Law: The basic issue to be resolved is whether a member of the Committee would be a "public official." Section 1 of the Ethics Act defines "public official" as follows: Val J. Kelmeckis, Director October 14, 1980 Page 2 "Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement of personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. 'Public official' shall not include any appointed official who receives no compensation other than reimbursment for actual expenses." 65 P.S. 401. Members of the Committee are to be appointed by the Secretary of DER pursuant to Section 507 of the Solid Waste Management Act, No. 1980 -97 which requires DER to develop a Hazardous Waste Facilities Plan. Section 507 of the Act provides that: "(b) In preparation of the Plan, the Department shall consult with affected persons, municipalities and state agencies. Within 60 days after the effective date of this act the secretary shall appoint the Pennsyl- vania Hazardous Waste Facilities Planning Advisory Committee. The department shall insure that the advisory body consist of substantially equivalent proportions of the following four groups: private citizens or representatives of public interest groups, public officials and citizens or represen- tatives of organizations with substantial economic interest in the plan. It shall specifically include but not be limited to a representative of a waste treatment operator, a waste generator, local govern- ments, environmentalists, and academic scientist. (c) The committee may recommend to the depart- ment the adoption of rules and regulations, standards, criteria and procedures as it deems necessary and advisable for the preparation, development, adoption and implementation of the Pennsylvania Hazardous Waste Facilities Plan. Val J. Kelmeckis, Director October 14, 1980 Page 3 (d) A vacancy occurring on the committee shall be filled in the same manner as the original appointment and the secretary or his representative shall serve as chair- person of the committee. (e) The committee shall establish operating procedures and may solicit the advice of municipalities or other persons. (f) The Committee shall disband after adop- tion of the plan by the Environmental Quality Board unless the committee is reconstituted as a provision of the plan. (g) Not later than two years after the date of enactment of this act, the Environ- mental Quality Board shall adopt the Pennsylvania Hazardous Waste Facilities Plan and the department shall review and amend said plan as necessary but in no event less than every five years following adoption." The Commission is charged with the responsibility to respond to your inquiry under Section (7)(9) of the Ethics Act and pursuant to Section 3(d) of the Act shall address "other areas of possible conflict" by opinion other than those specifically identified in Section 3 itself. Futhermore, Section 3(a) and (b) of the Ethics Act provides: "(a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensaton provided by law for himself, a member of his immediate family, or a business with which he is associated. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public Val J. Kelmeckis, Director October 14, 1980 Page 4 IV. Discussion: employee or candidate for public office shall solicit or accept, any- thing of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby." 65 P.S. 403(a) and (b). It is clear from Section 507(b) of the Solid Waste Management Act that the committee is purely advisory. Although the committee has the ability to "recommend" certain rules and regulations to the Secretary of DER, the essential nature of the committee is to advise the Secretary and DER. Section 507(b) does not indicate whether the committeee has the power to expend public monies or whether its members are paid compensation other than reimbursement for actual expenses. However, since the power to expend public money cannot be implied and does not appear to exist, such power must be lacking. Likewise, the statute itself does not provide for payment of compensation or expenses. Hence, same must not be authorized. The committee, therefore, is composed of uncom- pensated members who are appointed in an advisory capacity only. If appointed to the committee you would not be a "public official" subject to all requirements of the Ethics Act. This committee, however, because of its role in recommending rules and regulations in particular, may be able to ultimately affect the basic choices regarding implementation of the Pennsylvania Hazardous Waste Facilities Plan (hereinafter the Plan). The committee is to be composed as set forth above of some perons /representatives of "organizations with substantial economic interest in the plan." While you as a member of the committeee might generally represent such an organization, the Commission finds the public has a right to be assured that your representation does not result in specific economic gain or advantage for only your particluar firm or employer. On the committee, for example, questions relating to technological methods for disposal of certain wastes may Val J. Kelmeckis, Director October 14, 1980 Page 5 arise requiring recommendations from the committee. If you, as a member of the firm realize that recommendation #1 would result in substantial economic advantage to your firm because only your firm has the technological skill or patent, for example, to implement recommendation #1 you should refrain from voting on same. You may discuss the proposals and recommendations in general in order that the committee receive the benefit of your expertise, but to avoid the appearance of a conflict of interest, abstention is required as to an actual vote in circumstances such as this. Likewise, during or after disbandment of the committee or your departure from the committee, you may not use information gained through your tenure on the committee for the financial gain, either for yourself or your firm. This would not preclude you or your firm from presenting bids solicited in an open and public manner on projects even if these are a direct result of recomenda- tions of the committee or the plan finally adopted except as described in the immediately preceeding sentence. If an open and public bid process is not utilized, however, because of your association with the committee (assuming you are the appointed member) you must refrain from negotiating with DER on this matter. After a contract is awarded or secured, you may administer the contract. Finally, you must comply with the requirements of Section 3(b) of the Act. You may not offer anything of value to a public official to influence him nor solicit anything of value (including the promise of future employ- ment or contract) based on the understanding that such would influence your judgment on Committee matters. V. Conclusion: Members of the Hazardous Waste Facility Planning Advisory Committee are not public officials subject to the reporting and disclosure requirements of the Ethics Act. However, under Section 3(d) the Commission perceives the possibility of other areas of conflict in regard to membership on this committee. The Commission concludes that your conduct, if appointed to this Committee should conform to the following requirments: A. You should refrain from voting on any committee matter or recommendation where the outcome will clearly result in financial gain only for you or your firm. Val J. Kelmeckis, Director October 14, 1980 Page 6 PJS /rdp B. You may not, during or after your tenure on the committee use information gained during that tenure to the specific economic advantage of yourself or your firm. C. Your firm may seek and secure work through open and public bids or otherwise even if the project involved is a direct result of a recommendation of the committee except as limited by A and B above. However, you may not negotiate a contract not awarded through an open and public bid process. You may administer any contract after awarded or secured by your firm. D. You must not offer to any public official or accept anything of value where the aim of the offer or acceptance is to influence or the result is that you are influenced in your judgment on Committee matters. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing 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. AUL J. SM Chairman