HomeMy WebLinkAbout03-611 DavisHarleth W. Davis
256 Huntsville Road
Dallas, PA 18612
Dear Mr. Davis:
ADVICE OF COUNSEL
December 18, 2003
03 -611
Re: Former Public Employee; Section 1103(g); Sanitarian Sewage Specialist;
Pennsylvania Department of Environmental Protection.
This responds to your letter of November 14, 2003, by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
1a. =S. 1101 et seq., presents any restrictions upon employment of a Sanitarian
Sewage Specialistfollowing termination of service with the Pennsylvania Department of
Environmental Protection.
Facts: On September 26, 2003, you retired from your position as a Sanitarian
SrNa9e Specialist with the Pennsylvania Department of Environmental Protection
( "DEP'), Northeast Regional Office. You have submitted a job description, which is
incorporated herein by reference.
You held the position as a Sanitarian Sewage Specialist since July 1980. For the
past five or more years, your duties were exclusively in Lehigh, Northampton, and the
lower portion of Schuylkill Counties.
On October 3, 2003, William Karam approached you with an offer of employment
to work for William G. Karam Associates, Inc. of Clarks Summit, Pennsylvania. Your
duties in your new position would be to give input in drafting reports, studies and
investigations as assigned. You state that once Mr. Karam would finalize such reports,
studies and investigations, some may be submitted under his signature or seal to DEP
for review or approval. You would participate at public and private meetings on behalf
of the firm, but would not represent the firm at any DEP meeting until the one year
period would expire from the date of your retirement. You may be asked to conduct file
reviews at DEP's offices during the one year time period, but would not initiate any
contact with DEP's technical or managerial staff.
Davis 03 -611
December 18, 2003
Page 2
You ask what limitations and conditions the Ethics Act would impose upon your
prospective employment with William G. Karam Associates, Inc.
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn complaint which will
be investigated by the Commission if there are allegations of Ethics Act violations by a
person who is subject to the Ethics Act. To the extent you have inquired as to conduct
which has already occurred, such past conduct may not be addressed in the context of
an advisory opinion. However, to the extent you have inquired as to future conduct,
your inquiry may, and shall be addressed.
In the former capacity as a Sanitarian Sewage Specialist 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 ":
§ 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
Davis 03 -611
December 18, 2003
Page 3
"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-hiimself, 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
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.
Davis 03 -611
December 18, 2003
Page 4
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 were associated upon termination of
public service is DEP in its entirety. 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 restrictions of Section 1103(g) of the Ethics Act, you are
generally advised that although the Ethics Act would not preclude you from accepting
employment with William G. Karam Associates, Inc., it would restrict your conduct in
your new position to the extent that such conduct would constitute prohibited
representation before DEP. You are specifically advised that as to conducting file
reviews at DEP offices during the one -year time period, such may be problematic in that
as a practical matter, it would appear to be impossible for you to review DEP files in
DEP offices without encountering DEP personnel. You are cautioned that such
personal contacts with DEP staff on behalf of your new employer during the one -year
period would transgress Section 1103(g) of the Ethics Act.
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
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.
Conclusion: In the former capacity as Sanitarian Sewage Specialist with the
Department of Environmental Protection ("DEP'), 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. The 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
Davis 03 -611
December 18, 2003
Page 5
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