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HomeMy WebLinkAbout02-604 ColbertWoodrow J. Colbert 249 North 23 Street Camp Hill, PA 17011 ADVICE OF COUNSEL October 15, 2002 02 -604 Re: Former Public Employee; Section 1103; Program Coordinator, Dirt & Gravel Road Pollution Prevention Program; - Program Analyst 3; Department of Environmental Protection; Bureau of Water Quality Protection; Division of Conservation Districts and Nutrient Management; Assignment to State Conservation Commission. Dear Mr. Colbert: This responds to your letter of September 9, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act "), 65 1: § 1101 et seq., presents any restrictions upon employment of the Program Coordinator for the Commonwealth's Dirt & Gravel Road Pollution Prevention Program, classified as a Program Analyst 3, following termination of service with the Commonwealth of Pennsylvania. Facts: As a current Commonwealth employee, you seek an advisory from the State Ethics Commission regarding the post - employment restrictions of the Ethics Act. Per the submitted facts, you are currently employed by the Department of Environmental Protection (DEP) as the Program Coordinator for the Dirt & Gravel Road Pollution Prevention Program. Although you are employed by DEP, you are assigned directly to the State Conservation Commission. You have submitted copies of your current job description and organizational chart, which documents are incorporated herein by reference. Your job description lists your department as DEP, your bureau as "Water Quality Protection," and your division as "Conservation Districts & Nutrient Management." You are classified as a Program Analyst 3. Per your job description, you are assigned directly to the State Conservation Commission and you report directly to and are supervised by that Commission's Executive Secretary. You are responsible, inter alia, for "shepherding" all phases of the State Conservation Commission's $4,000,000 program to prevent dust and sediment, nonpoint source, pollution from originating on the Commonwealth's 28,000 mile network of dirt and gravel roads. Colbert 02 -604 October 15, 2002 Page 2 In a submitted document labeled "Job Duties Narrative," you explain that the Dirt and Gravel Road Pollution Prevention Program ( "Program ") is controlled by 65 County Conservation Districts. Education and technical assistance are provided to the Conservation Districts under a contract with the Penn State Center for Dirt and Gravel Road Studies ( "Center "). You state that you do not supervise or administer the funds related to that contract. You have been placed on temporary duty at the Center in the status of an Adjunct Research Assistant, which arrangement enables you to use the Center's equipment. You have submitted a memorandum dated January 2, 2002, confirming your appointment as an Adjunct Research Assistant for the period January 1, 2002, through December 31, 2002. You contend that because of your appointment as an adjunct with the University, ou have "already been at arms - length from administrative or policy matters at the State Conservation Commission] for eleven months." (Job Duties Narrative, paragraph ). You further contend that any policy matters that may be influenced by your position are limited to the Conservation Districts which are bound under a voluntary contract to perform the requirements of the Program. Id. Following retirement, an opportunity may exist for you to work with Penn State University to expand the conservation benefits of the effort. You request an advisory identifying restrictions on your working relationships after retirement. You specifically ask: (1) Which, if any, agencies, you will be prohibited from working with upon retirement; (2) How long the post - employment restrictions will apply; and (3) Whether the relevant prohibitions of the Ethics Act differ with respect to classroom instruction as opposed to administrative or policy work. 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 Program Coordinator for the Commonwealth's Dirt & Gravel Road Pollution Prevention Program, 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 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 Colbert 02 -604 October 15, 2002 Page 3 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 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 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 Colbert 02 -604 October 15, 2002 Page 4 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 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 and the State Conservation Commission in its entirety. This conclusion is based upon the submitted facts that you are both a DEP employee and you are assigned directly to the State Conservation Commission and report directly to and are supervised by that Commission's Executive Secretary. See, Confidential Opinion, 01 -004 at 5 and Confidential Opinion, 02 -006 at 5 ( "Extensive involvement' with agencies /bodies in addition to the employer agency /body may make such other agencies /bodies part of the former governmental body). Therefore, for the first year after termination of Commonwealth service, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DEP and /or the State Conservation Commission. As for your specific questions, the first two have already been addressed above. Your third specific question is whether the relevant prohibitions of the Ethics Act differ with respect to classroom instruction as opposed to administrative or policy work. As noted above, advisories are submitted based upon the facts submitted. The facts which you have submitted do not enable a conclusive determination as to whether the proposed classroom instruction would involve prohibited "representation" before your former governmental body. Accordingly, this Advice must necessarily be limited to advising as to your third specific question that Section 1103(g) of the Ethics Act would not prohibit you from providing classroom instruction services to Penn State University conditioned upon the assumption that in so doing, you would not be engaging in prohibited representation before your former governmental body as identified 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) 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 Colbert 02 -604 October 15, 2002 Page 5 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 Program Coordinator for the Commonwealth's Dirt and Gravel Road Pollution Prevention Program, 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 the Commonwealth, you would become a 'former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be DEP and the State Conservation Commission. 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. 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