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HomeMy WebLinkAbout04-504 AllioCharles J. Allio 3011 Nickelplate Road Cochranton, PA 16314 Re: Former Public Employee; Section 1103(g); Local Government Liaison; Environmental Community Relations Specialist; Department of Environmental Protection. Dear Mr. Allio: ADVICE OF COUNSEL January 22, 2004 04 -504 This responds to your letter of December 20, 2003, 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 Local Government Liaison, classified as an Environmental Community Relations Specialist following termination of service with the Pennsylvania Department of Environmental Protection. Facts: You were formerly employed with the Pennsylvania Department of Environmental Protection (DEP ") as a Local Government Liaison, classified as an Environmental Community Relations Specialist. You have submitted a copy of your job description and organizational chart, which documents are incorporated herein by reference. You have recently accepted employment as a Water Resource Specialist with RCAP Solutions, Inc. ( "RCAP Solutions ") of Winchendon, Massachusetts. You note that RCAP is an acronym for Resources for Community And People. RCAP Solutions represents the Northeast USA Region of the National RCAP, which is supported by several federal agencies. You state that "their" mission is to sustain effective and compliant environmental projects in small disadvantaged communities. As a Water Resource Specialist with RCAP Solutions, your job responsibilities will or may involve the following activities. Allio 04 -504 January 22, 2004 Page 2 First, the vast majority of your work will be to provide advice to small rural local governments and their sewer and water authorities. Specifically, you will consult with and advise local leaders on financial, technical, and managerial matters regarding their environmental initiatives. Second, you may potentially be involved in assisting RCAP Solutions with developing training modules for local governments regarding the efficient and compliant operation of small sewer and water operations. Relative to such activities, you question whether, under the Ethics Act, you may draw down hours from a contract that was secured by RCAP Solutions before you became an RCAP Solutions employee. You state that to date, you have not secured payment from DEP funds for this type of work pending a ruling from the State Ethics Commission. Third, as a field staff person, you may occasionally be required to consult with DEP on the community needs within your service area. In this regard, you parenthetically note that since your former DEP service area was Northwest Pennsylvania, and your current RCAP service area will be Northeast Pennsylvania, you will be interacting with different individuals. You maintain that as an RCAP representative, your interaction and discussion with DEP will be limited to clarifying issues between the community and DEP, which will enable you and RCAP Solutions to provide appropriate services to the community. You opine that you will not have a conflict of interest as to such interaction since the community will not pay you. Fourth, in that your supervisor has been approached by DEP to discuss the future delegation of services to communities regarding innovative technologies and on- lot sewage management as alternative solutions to traditional environmental infrastructure, you may be involved in the discussions and brainstorming of possible programs that can be developed. Although the type of negotiations between RCAP Solutions and DEP cannot be determined at this time, you seek guidance as to how you may participate in the discussions and brainstorming process. You state that you have an interest and have some experience in this field. You further state that you understand that your role would be to listen and to understand DEP's needs. Therefore, you state that you would be able to advise your co- workers, rather than DEP, on program development concepts. You state that it is unclear to you as to whether you may participate in the discussions until an understanding, agreement and possible contract has been negotiated. You understand that you must file a Statement of Financial Interests form with the State Ethics Commission by May 1 of 2004. You state that you have only received Pennsylvania unemployment compensation and an RCAP salary drawn down from federal contracts to date. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1'107(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 liave 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. In the former capacity as a Local Government Liaison, classified as an Environmental Community Relations Specialist with the Pennsylvania 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 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 Allio 04 -504 January 22, 2004 Page 3 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 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 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. Allio 04 -504 January 22, 2004 Page 4 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. 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 including, but not limited to, the Northwest Regional Office and all other DEP regional offices. Therefore, for the first year after termination of service with RCAP Solutions, 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 advised as follows. With regard to whether you may draw down hours from a contract that was secured by RCAP Solutions before you became an RCAP Solutions employee, you are cautioned that as to such pre- existing contract, you could run afoul of Section 1103(g) of the Ethics Act if your name would be included on invoices submitted to DEP. In Shay, supra, a former PennDOT employee who accepted employment with a private company argued that the inclusion of his name on invoices submitted by his former governmental body would not constitute representation since the definition of "represent" only enumerates lobbying and submitting bid or contact proposals. The Commission first recognized that the Legislative intent in promulgating Section 3(g) of the Ethics Law was to protect the public trust, such that a public official /employee must act consistently with the public trust and upon leaving public service, may not utilize his association with the public sector, officials or employees to secure treatment or benefits for himself or his new employer that may only be obtainable because of his association with his former governmental body. Allio 04 -504 January 22, 2004 Page 5 The Commission then quoted the definitions of "represent" and "person," and stated that the new employer would clearly be within the definition of "person" as a business /firm and corporation. The Commission further noted that the submission of invoices containing the former public employee's name would fall within the definition of "represent" which encompasses "any activity." Based on this interpretation, the Commission concluded that the proposed inclusion of the former public employee's name on invoices submitted by the new employer to PennDOT would be prohibited by Section 3(g) of the Ethics Law. The Commission modified its decision in Shay when it issued Abrams/Webster, Opinion 95 -011. Abrams/Webster involved an appeal filed by a former PennDOT civil engineer whose work was confined to District 3 -0. In that Opinion, the Commission held that in the event of work performed on a pre- existing contract and not involving District 3 -0, the name of the former PennDOT civil engineer may appear on routine invoices if required by the regulations of the agency to which the billing is submitted. Applying Shay to the instant matter, the specific prohibitions of Section 1103(g) of the Ethics Act would preclude the inclusion of your name on invoices submitted to DEP. The inclusion of your name on invoices submitted by RCAP Solutions to DEP would be with your knowledge and consent and would constitute action on behalf of RCAP Solutions. It is also conceivable that if an invoice were challenged, you would have to become a participant in the resolution of the dispute by explaining or testifying on behalf of RCAP Solutions as to the manner in which you completed the services on a contested invoice. Such activity, according to Shay, would also constitute prohibited representation. In your request, you do not state whether your work as an RCAP Solutions employee under the pre- existing contract that RCAP has with DEP involves DEP's Northwest Regional Office, where you formerly worked. If your work under the pre- existing contract does involve DEP's Northwest Regional Office, under these circumstances, based upon Abrams/Webster, your name may not appear on invoices pertaining to such pre - existing contracts. On the other hand, if your work under such pre - existing contract does not involve the Northwest Regional Office, your name may appear on routine invoices if required by the regulations of DEP. With regard to your proposed interaction with DEP, you state that you may be required to consult with DEP regarding community needs within your service area. You opine that ou would not transgress the Ethics Act in carrying out such activities because: (1) you would be interacting with DEP staff outside of your former DEP service area; and () you would not be receiving compensation from the community. First, as discussed above, your former governmental body is DEP in its entirety. Second, you certainly would receive compensation for your consulting services as an RCAP Solutions employee. Given that you would be acting on behalf of your new employer with compensation within the one -year period, you would transgress Section 1103(g) of the Ethics Act. Finally, as to your involvement in brainstorming sessions, discussions, and negotiations with DEP, you state your understanding that your role would be to listen and to understand DEP's needs. To the extent that you would merely be attending such meetings with DEP as a passive observer without any further action, you would not transgress Section 1103(g) of the Ethics Act. However, if your actions would go beyond that of a mere observer so that you would actually engage in interactions with DEP, such would be problematic under the Ethics Act. Finally, as to your question regarding filing your Statement of Financial Interests, you are advised that pursuant to Section 1104(a ) of the Ethics Act, each public employee of the Commonwealth is required to file a Statement of Financial Interests for the preceding calendar year with the department, agency, body or bureau in which he is employed by May 1 of each year that he holds such a position and of the year after he leave such a position. 65 Pa.C.S. § 1104(a). Allio 04 -504 January 22, 2004 Page 6 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 a Local Government Liaison, classified as anironmental Community Relations Specialist for the Pennsylvania 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 including, but not limited to, the Northwest Regional Office and all other DEP regional offices. 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 w►11 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