subject to criminal penalties under 18 U.S.C. § 208(a).5 Today's decision addresses only the alleged ethical violations.6 Under the Agency's ethical standards, an employee's duty to refrain from participating in matters affecting a prospective employer arises as soon as the employee, either directly or through an intermediary, makes contact with that employer. See EPA Ethics Advisory 87-7 (July 17, 1987) Attachment at 2. (This would not include the mass distribution of resumes without additional communications. Id.) In the present case, Mr. Breitlow specifically mentioned CWM as one of the companies in which he was interested and shortly thereafter Mr. Hylton contacted CWM on Mr. Breitlow's behalf. Given Mr. Breitlow's expressed preferences, it was reasonable for him to assume that CWM would receive a copy of his blind resume. Mr. Breitlow was also well aware that his Section was processing the CWM permit modification. Under a strict reading of the ethical guidelines, Mr. Breitlow should have recused himself at the time his resume was sent to CWM (February 25 or 26, 1991) rather than waiting or (5) Making a Government decision outside of official channels; (6) Adversely affecting public confidence in the integrity of Government or EPA. 40 C.F.R. § 3.103. 5 That section provides, in part: [W]hoever, being an officer or employee of the executive branch or Shall be fined not more than $10,000, or imprisoned not more than 2 years, or both. 6 Because the Agency's ethical standards require an employee to avoid actions which might result in or create the "reasonable appearance" of impropriety, they impose a much broader standard of disqualification than that imposed by 18 U.S.C. § 208. As to any alleged violation of § 208, we note that the Region's response to the petition for review asserts that the United States Attorney's Office concluded, after investigation, that prosecution was not warranted. We did not attempt to confirm this assertion in light of privacy considerations and since we did not rely upon it in reaching our decision. Region IX's Response to Petition for Review at 2. FACILITY until March 15, 1991.7 After a thorough review of the record on appeal, however, we conclude that the eighteen or nineteen day delay in recusal, combined with Mr. Breitlow's minimal participation in the matter, does not warrant review of the June 5, 1991, permit modification. The declarations submitted with the Region's Response to Petition for Review support a determination that Mr. Breitlow did not substantially participate in the permit review process while it was under consideration by the state. It was DHS that prepared the initial permit modification package, conducted public hearings, and prepared the appropriate documentation. Although there was consultation with EPA, at no time did Mr. Breitlow "review, advise or express any concern at all concerning the technical contents or preparation of the permit modification package." Declaration of Fredrick Moore in Support of Region IX's Response to Petition for Review at ¶5; see also Breitlow Declaration at ¶¶7, 15. Rather, it was Fredrick Moore who consulted with DHS on development of the permit modification package. Declaration of William Veile in Support of Region IX's Response to Petition for Review; Declaration of James Pappas in Support of Region IX's Response to Petition for Review. The submission by DHS to Region IX, reflecting the culmination of the state's review, preceded even the first contact between Mr. Breitlow and Mr. Hylton and, as such, could not have been affected by the subsequent course of events. The documentation submitted by Region IX indicates that the only decision concerning CWM's permit modification in which Mr. Breitlow participated was the decision to delay issuance of modification #3 until the FWS completed its final biological opinion. Mr. Breitlow concurred in that decision on or about February 26, 1991. Moore Declaration at ¶5. This decision was adverse to CWM's interests at the time in that it delayed the ultimate approval of this modification, which had been requested by CWM itself. Mr. Breitlow did not participate in any other substantive decision regarding the modification. Id. at ¶¶5–7; Feeley Declaration ¶¶4-5. We therefore 7This is true even though CWM initially received a copy of Mr. Breitlow's resume which Mr. Hylton characterized as "blind". The ethical guidelines indicate that the obligation of recusal becomes effective when an employee makes contact with a particular person or organization either directly or through an intermediary. This situation occurs once that contact is made on behalf of a specific individual, whether or not the potential employer is initially aware of the applicant's name. The record on appeal contains two documents on which Mr. Breitlow's name appears. These are the official file copies of the Final Decision on the March 19, Continued reject Petitioner's suggestion that Mr. Breitlow improperly influenced the modification decision. It should also be noted that the final modification decision was issued after Mr. Breitlow's recusal and after he had left the Agency entirely. We note that in support of its petition, Petitioner also suggests that several other aspects of the modification process were tainted by Mr. Breitlow's alleged conflict of interest. Specifically, Petitioner contends that despite repeated requests, both EPA and [DHS] re- Petition at 3. Petitioner also states that "based on a decision by Mr. Breitlow, the EPA did not even show up at the sole hearing on this permit modification, instead abdicating responsibility entirely to [DHS]." Id. at 4 (emphasis in original). We note, however, that the public hearing, conducted by DHS, was held on November 27, 1990, well before Mr. Breitlow was contacted regarding employment in the private sector. Thus there is no basis in the record to conclude that any decisions regarding the location of, or the Region's participation in, the public hearing were influenced by Mr. Breitlow's subsequent employment contacts with CWM. Moreover, the record on appeal indicates that Mr. Breitlow did not substantially participate in these decisions. Similarly, the record indicates that any decisions regarding the need for a risk assessment were made prior to February 25 or 26, 1991 (the date Mr. Hylton first contacted CWM on Mr. Breitlow's behalf), and, in any case, were not made by Mr. Breitlow. 1991 modification and the letter transmitting the Agency's notice of this decision to CWM. Mr. Breitlow's name appears along with several others on the concurrence line of these documents. Thus, at first glance, it might appear that Mr. Breitlow concurred in the March 19 modification. Upon closer examination, however, it appears that these documents do not show that Mr. Breitlow concurred in these decisions. Rather it was Thomas Kelly, an environmental engineer in the Permits Section, who signed these documents as "Kelly 4 Breitlow." Because of his recusal, Mr. Breitlow had instructed Mr. Kelly to act as the Permits Section Chief when necessary to review decisions relating to CWM. Declaration of Thomas Kelly in Support of Region IX's Response to Petition for Review at ¶4. Although it is unfortunate that Mr. Kelly indicated his concurrence in this manner, the record indicates that he did not consult with or receive any input from Mr. Breitlow. Id. FACILITY Therefore, none of these allegations justifies review of the permit modifications. We therefore conclude that, because of Mr. Breitlow's limited involvement in preparing the modification package, the short period of time between the initial contact with CWM and Mr. Breitlow's recusal, and the fact that the final modification decision was made after Mr. Breitlow had left the Agency, review of the June 5, 1991, permit modification is not warranted and is hereby denied. 10 Had the delay in recusal been greater, or Mr. Breitlow's involvement been more significant, we might well have reached a contrary result. B. March 19, 1991 Modification Petitioner also requests that we reopen all previous CWM permits and permit modifications "issued by Region IX during the time in which Mr. Breitlow was negotiating with [CWM] for future employment, including at a minimum the EPA's March 19, 1991 authorization to construct landfill B-18." Petition at 4. Because any contacts with CWM could not be viewed as starting any earlier than February 25 or 26, 1991, only the March 19, 1991, permit modification is encompassed by this request. However, the March 19, 1991, permit modification became effective in accordance with 40 C.F.R. § 124.15(b), thirty days after service of notice since it was not ap "We note that there is language in the Agency's ethics guidance indicating that, in certain cases, recusal may not be a sufficient response to avoid ethical concerns. In some cases, Agency employees may be required to refrain from any contacts with a potential employer if that employer has pending business with the Agency. See EPA Ethics Advisory 86-10 (November 6, 1986) and attached Department of Justice memorandum dated November 12, 1976. We reach no conclusion as to whether this requirement should have applied to Mr. Breitlow. Under the facts of this case, there is no reason to conclude that Mr. Breitlow's discussions with CWM in any way unduly influenced the permit review process as conducted by the Region or that any action other than Mr. Breitlow's recusal was necessary to avoid such potential influence. 10 In reaching this conclusion, we recognize that neither Petitioner nor the public in general was given notice of Mr. Breitlow's recusal, nor were they aware of his limited involvement in the development and approval of the permit modification. It is therefore understandable that the timing of Mr. Breitlow's decision to accept a position with CWM could arouse public concern and suspicion. Although we conclude that there was no improper influence in the present case, in the future the Region may wish to consider providing the public with more complete disclosure whenever possible. For example, the Region may have avoided this situation by fully disclosing the circumstances surrounding Mr. Breitlow's recusal at the same time it issued the June 5, 1991, modification. By this time, Mr. Breitlow had already left the Agency and begun work with CWM and full disclosure of Mr. Breitlow's limited role might have clarified and perhaps resolved Petitioner's concerns. pealed at that time. The Board has no jurisdiction over that permit modification. Review is therefore denied. We note that even if we had jurisdiction over the March 19 modification, we would likely have denied review given the facts of this case as discussed in the previous section dealing with the June 5 modification. So ordered. |