HomeMy WebLinkAbout05-505 ConradEric R. Conrad
One Memory Lane
Enola, PA 17025
Re: Former Public Employee /Executive -Level State Employee; Section 1103(g);
Deputy Secretary for Field Operations; Department of Environmental Protection;
Annuitant; 95 -Day Emergency Return to State Service; Environmental Program
Manager.
Dear Mr. Conrad:
ADVICE OF COUNSEL
February 11, 2005
05 -505
This responds to your letters of January 5, 2005, and January 10, 2005, by which
you requested advice from the State Ethics Commission.
Issue: Whether the post - employment restrictions of Section 1103(g) of the Public
fficial and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g), which apply for
one year following termination of service in a public position, would begin to run anew
for a retired Deputy Secretary for Field Operations for the Department of Environmental
Protection ( "DEP ") who: (1) returns to DEP less than one month after retiring in order to
perform work as an annuitant under the 95 -day emergency return -to- state - service
provision at 71 Pa.C.S. § 5706(A.1); (2) in performing such work, holds a position
classified as an Environmental Program Manager; and (3) completes such work
approximately five months after his retirement.
Facts: On June 25, 2004, you retired from Commonwealth employment as
Deputy Secretary for Field Operations for DEP. Prior to retiring, you requested and
received from the State Ethics Commission an advisory (Conrad, Advice of Counsel,
04 -540) regarding the post - employment restrictions of Sections 1103(g) and 1103(i) of
the Ethics Act. Conrad, Advice of Counsel, 04 -540, is incorporated herein by reference.
Conrad, Advice of Counsel, 04 -540 advised you, inter alia, that the restrictions of
Section 1103(g) of the Ethics Act would apply to you for one year after leaving DEP.
By letters dated January 5, 2005, and January 10, 2005, you now seek additional
advice from the State Ethics Commission with regard to the impact upon the one -year
period of applicability of Section 1103(g) of the Ethics Act of your return to work for DEP
from July 13, 2004, through November 19, 2004, as an annuitant under the 95 -day
emergency return -to- state - service provision at 71 Pa.C.S. § 5706(A.1). You have
submitted facts, the material portions of which may be fairly summarized as follows.
You state that when you retired, you were asked to assist in completing two very
narrowly scoped tasks: (1) continuing to chair the Pottstown Landfill Closure Committee
Conrad, 05 -505
February 11, 2005
Page 2
( "Committee "); and (2) developing a strategy for reintegrating environment and health
issues in the Pottstown area. You agreed to undertake both tasks under certain
conditions, which conditions included that you would not have any involvement in any
permit or enforcement discussions relative to any part of DEP; that you would minimize
all staff contact; and that you would be very clear with the Committee that you would
only be acting as the Committee's convenor, leaving final outcomes to DEP.
Following your retirement, you performed the aforementioned tasks as an
annuitant under the return -to- state - service provision at 71 Pa.C.S. § 5706(A.1). You
have submitted a copy of the July 15, 2004, letter from Michael Sullivan, Director of the
Bureau of Human Resources of DEP, confirming the approval of your employment
beginning July 13, 2004, as a Commonwealth annuitant with a classification of
"Environmental Program Manager." The letter states in pertinent part as follows:
This is to confirm the approval of your employment as
a Commonwealth annuitant. This will be for a period not to
exceed 95 days in calendar year 2004, beginning July 13,
2004, and ending no later than December 31, 2004. This
approval is for you to continue to oversee the
implementation of the Environmental Public Health
Development and the Pottstown Landfill Closure effort. This
is the only work that you have approval to perform.
You are being re- employed as an Environmental
Program Manager....
... You will only be paid for the hours you work.
Sullivan Letter of July 15, 2004.
You state that no formal job description was created for your new position; rather,
you and the Secretary agreed that you would continue to act as the convenor for the
Committee and finish writing a strategy for integrating environmental issues with health
issues in the Pottstown area, which strategy would then serve as a basic outline for the
Secretary to use for future actions relative to addressing the community's concerns
about health issues in the Pottstown area.
You state that your work as an annuitant relative to the Committee entailed
reviewing and approving agendas for the Committee meetings, reviewing comments on
draft and final minutes, and acting as the Committee's convenor. You did not
participate in any daily operational decisions or have any contact with any of the other
1458 or so employees who previously were under your direction and control in your
former position as Deputy Secretary for Field Operations. Your contact with DEP staff
was limited to three individuals: one staff person who helped in the administrative
details of the Committee, the current Deputy Secretary for Field Operations, and the
Secretary, such contacts being necessary for the purpose of keeping such individuals
apprised of the Committee's progress. You further state that DEP staff and local
citizens were aware that you were no longer serving as Deputy Secretary for Field
Operations and that your responsibilities were strictly limited to the above efforts.
You state that you made it clear to the current Deputy Secretary for Field
Operations and the Secretary that you would not participate in any permitting or
enforcement decisions on any matter. You further state that you recused yourself from
historic permitting and compliance issues at the landfill to avoid influencing the
outcome. You state that the Secretary fully agreed with such course of action given that
there was a strong desire on the part of all parties to not adversely affect the Ethics Act
Conrad, 05 -505
February 11, 2005
Page 3
and Management Directive 515.20 of February 21, 2002 (pertaining to reemployment of
Commonwealth Annuitants).
You worked out of your home, and you were not provided with a Commonwealth
e -mail account. You worked approximately 3.5 to 4.0 days per month until November
19, 2004, when your work as an annuitant ended.
You seek an advisory regarding the impact upon the one -year period of
applicability of Section 1103(g) of the Ethics Act of your return to work for DEP from July
13, 2004, through November 19, 2004, as an annuitant under the 95 -day emergency
return -to- state - service provision at 71 Pa.C.S. § 5706(A.1). You state that being hired
as an annuitant resulted in a reduction of your previous hourly rate, which you believe
was an indication that your scope of responsibilities had been reduced commensurate
with the assignment by the Secretary. You contend that your work as an annuitant
would constitute de minimis activities and actions that should not adversely affect the
start of the one -year period of applicability of Section 1103(g) of the Ethics Act. Finally,
you state that nowhere in the aforementioned Management Directive does it indicate
that such action will result in extending the one -year period.
This Advice of Counsel takes administrative notice of the job classification
specifications for your annuitant position as Environmental Program Manager, which job
classification specifications are incorporated herein by reference. The job classification
specifications describe the position as involving professional managerial work in the air,
water, waste and mineral resources programs in DEP, with authority including, inter alia,
the following:
• To direct, through subordinate managers and /or supervisors:
the planning, development, implementation, coordination
and evaluation of a major statewide program or functional
area in the air, water, waste and mineral resources
programs, as a division chief in central office; or, the
inspection, enforcement, and permit review functions for the
entire air, water, waste, environmental cleanup, community
environmental control, or oil and gas program within the
Deputate for Field Operations Region; or, to direct all
activities in the regulation of mining operations in each of the
District Mining Offices; or, to direct the pollution prevention
and compliance assistance, emergency response, permit
review and coordination, and program coordination and
planning functions for each of the Field Operations Regional
Offices.
• Develop, implement or recommend changes to rules,
regulations, policies, and procedures;
• Determine and prepare budgetary requests;
• Approve major enforcement actions taken against facilities;
• Conduct program evaluations and prepare reports of findings
and recommendations;
• Manage federal and state grant programs for the
construction of facilities, the preparation of official plans, and
other approved activities;
• Review and approve or deny permit applications by ensuring
that technical requirements have been met, that permits are
Conrad, 05 -505
February 11, 2005
Page 4
issued or denied in accordance with established procedures,
and that approvals have been coordinated with the
appropriate programs and agencies;
• Review work performance, evaluate employee performance
and prepare and sign employee Performance Evaluation
Reports; and
• Interview prospective employees and recommend employee
selection or rank applicants in terms of preferability for
employment.
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 that the requestor has submitted. In issuing the advisory based upon the
facts that the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that 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.
When you retired from DEP on June 25, 2004, you became a former public
employee and a former executive -level State employee subject to the restrictions of
Sections 1103(g) and 1103(i) of the Ethics Act. See, Conrad, Advice of Counsel, 04-
540.
When you returned to work for DEP from July 13, 2004, through November 19,
2004, as an annuitant under the 95 -day emergency return -to- state - service provision at
71 Pa.C.S. § 5706(A.1), you held a position in which you were classified as an
"Environmental Program Manager." A review of the job classification specifications for
that position necessitates the conclusion that as an Environmental Program Manager,
you were a public employee subject to the Ethics Act. Cf., Vayansky, Advice 03 -571.
This conclusion is based upon the following analysis.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
Conrad, 05 -505
February 11, 2005
Page 5
65 Pa. C. S. § 1102.
The Regulations of this Commission similarly define the term "public employee"
and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary- treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
Conrad, 05 -505
February 11, 2005
Page 6
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
Status as a public employee subject to the Ethics Act is determined by applying a
judicially approved objective test, which focuses upon the powers and duties of the
position as established by objective sources such as the job description, job
classification specifications, and organizational chart, rather than the variable functions
that the individual may actually perform in the position. Phillips v. State Ethics
Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). Moreover, the Commonwealth Court of
Pennsylvania has specifically considered and approved the Commission's objective test
and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. Id.
The first portion of the statutory definition of "public employee" includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision - makers; individuals
who prepare or supervise the preparation of final recommendations; and individuals
who make final technical recommendations.
Based upon the job classification specifications, it is clear that the authority of an
Environmental Program Manager for DEP includes responsibility for taking or
recommending official action of a nonministerial nature with regard to categories (2), (3),
(4) and (5) of the Ethics Act's definition of "public employee," specifically, `administering
or monitoring grants or subsidies," "planning or zoning,' "inspecting, licensing,
regulating or auditing any person" and any other activity where the official action has an
economic impact of greater than a de minimis nature on the interests of any person."
65 Pa.C.S. § 1102.
Therefore, based upon the job classification specifications for the position of
Environmental Program Manager, you are advised that when you became an
Environmental Program Manager for DEP on July 13, 2004, you once again became a
public employee subject to the Ethics Act.
Conrad, 05 -505
February 11, 2005
Page 7
Consequently, on November 19, 2004, when you ceased working as an
annuitant with DEP, you once again became a "former public employee" subject to
Section 1103(g) of the Ethics Act. McGlathery, Opinion 00 -004; Graves, Opinion 00-
009.
The restrictions of Section 1103(g) apply for a full one -year period each time an
individual becomes a former public employee. Thus, as a result of your participation in
the 95 -day program, the one -year period of applicability of Section 1103(g) began anew
following your termination of participation in the 95 -day program on November 19, 2004.
The governmental body with which you have been associated upon termination
of public service (both times) is DEP in its entirety. Therefore, for a full one -year period
following your November 19, 2004, termination of service with DEP, Section 1103(g) of
the Ethics Act would apply and restrict "representation" of "persons" before DEP.
The State Ethics Commission may not carve out an exception or grant a waiver
from the requirements of the Ethics Act where there is no statutory authority for doing
so. Whitlock, Opinion 04 -015; Ziegler, Opinion 98 -001; Long, Opinion 97 -010; Marsh,
Opinion 93 -007; Richardson, Opinion 93 -006.
It is noted that the conclusions reached in this Advice of Counsel are consistent
with Commission precedents that were issued and available as public records long
before you retired. McGlathery, supra; Graves, supra.
As for your commentary that Management Directive 515.20 of February 21, 2002
does not mention that returning to work under the 95 -day program will have this effect,
the applicability of the Ethics Act, as a statute, is not impacted by the contents of the
Management Directive. (See, McGlathery, supra, and Long, Opinion 97 -010 rejecting
analogous arguments.)
The restrictions of Section 1103(i) of the Ethics Act, which apply to former
Executive -level State employees, will continue to apply to you for a period of two years
from the date of your retirement.
Based upon the facts that 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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: As a former public employee and former executive -level State
employee who retired from the Department of Environmental Protection ( "DEP ") on
June 25, 2004, but returned to work for DEP from July 13, 2004, through November 19,
2004, as an annuitant under the 95 -day emergency return -to- state - service provision at
71 Pa.C.S. § 5706(A.1), in a position classified as an Environmental Program Manager,
you were a public employee subject to the Ethics Act from July 13, 2004, through
November 19, 2004. On November 19, 2004, when you ceased working as an
Conrad, 05 -505
February 11, 2005
Page 8
annuitant with DEP, you once again became a "former public employee" subject to
Section 1103(g) of the Ethics Act. The restrictions of Section 1103(g) apply for a full
one -year period each time an individual becomes a former public employee. The
restrictions of Section 1103(g) will apply to you for a full one -year period following your
November 19, 2004, termination of service with DEP. 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