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HomeMy WebLinkAbout07-568 LytleJoeII Lytle 155 Brehm Road Washington, PA 15301 Dear Ms. Lytle: ADVICE OF COUNSEL August 13, 2007 07 -568 This responds to your faxed transmission received July 12, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon an individual employed as a Transportation Construction Inspector Supervisor for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), with regard to hiring her sister or a consultant inspection firm that employs the sister to perform work on PennDOT projects. Facts: You are employed as a Transportation Construction Inspector Supervisor with PennDOT. You have submitted a copy of your PennDOT position description, which is incorporated herein by reference. A copy of the job classification specifications for your position (job code 10630) has been obtained and is also incorporated herein by reference. Per your position description, you work as either the Inspector -in- Charge or as assistant to the Inspector -in- Charge of PennDOT highway construction projects. You participate in inspection or supervise the inspection of materials and work to ensure that the contractor follows contractual requirements and PennDOT standards and specifications. Per your job classification specifications, you supervise transportation construction inspectors in the inspection of materials and workmanship. You state that in your position, you hire inspectors from predetermined consultant inspection firms to perform work on PennDOT projects. You state that your sister has been offered a position with a consultant firm ( "the Firm ") to perform work on PennDOT projects. You further state that you are not currently working with the Firm. You ask what you would need to do to comply with the restrictions and prohibitions of the Ethics Act if your sister would accept employment with the Firm. Lytle, 07 -568 August 13, 2007 Page 2 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester 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 requester 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 requester has truthfully disclosed all of the material facts. As a Transportation Construction Inspector Supervisor for PennDOT, you are a public employee subject to the provisions of the Ethics Act. This conclusion is based upon the position description and job classification specifications, which when reviewed on an objective basis, indicate 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. Cf., Varner, Advice 04 -507; Marshall, Advice 02 -532. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, Lytle, 07 -568 August 13, 2007 Page 3 organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Your sister is a member of your "immediate family" as that term is defined by the Ethics Act. If your sister would become employed by the Firm, the Firm would be a business with which your sister is associated. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your position with PennDOT, or confidential information accessed or received as a result of being in your position, to effectuate a private pecuniary benefit to your sister or her employer, the Firm, through action favorable to your sister or the Firm or through a detriment to a competitor for consultant inspection work on PennDOT projects. See, Pepper, Opinion 87 -008. You would specifically have a conflict of interest in matters pertaining to the selection of your sister or her employer, the Firm, to perform work on PennDOT projects, and you would be prohibited from supervising work performed by your sister or the Firm. In each instance of a conflict of interest, you would be required to abstain fully from participation. 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 Transportation Construction Inspector Supervisor for the Commonwealth of Pennsylvania, Department of Transportation ( "PennDOT "), you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your sister is a member of your "immediate family" as that term is defined by the Ethics Act. If your sister would become employed by the consultant firm ( "the Firm ") that has offered her a position, the Firm would be a business with which she is associated. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your position with PennDOT, or confidential information accessed or received as a result of being in your position, to effectuate a private pecuniary benefit to your sister or her employer, the Firm, through action favorable to your sister or the Firm or through a detriment to a competitor for consultant inspection work on PennDOT projects. You would specifically have a conflict of interest in matters pertaining to the selection of your sister or her employer, the Firm, to perform work on PennDOT projects, and you would be prohibited from supervising work performed by your sister or the Firm. In each instance of a conflict of interest, you would be required to abstain fully from participation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Lytle, 07 -568 August 13, 2007 Page 4 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 requester 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, Robin M. Hittie Chief Counsel