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HomeMy WebLinkAbout07-016 ConfidentialThis Opinion is issued in response to your advisory request letters dated July 20, 2007, and August 15, 2007. I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella Reverend Scott Pilarz DATE DECIDED: 10/23/07 DATE MAILED: 11/7/07 07 -016 Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., an A with Commonwealth Department B ( "the Department ") would have a conflict of interest under Section 1103(a) of the Ethics Act with respect to a proposed grant from the Department to an educational institution that houses an organization with which a sibling of the A is employed, where said organization would not have any involvement with the proposed grant project. II. FACTUAL BASIS FOR DETERMINATION: As Chief Counsel of the Department, you request an advisory from this Commission with respect to Commonwealth Employee C (hereinafter referred to as "Employee C "), who is employed with the Department as an A. You note that you have been authorized by both Employee C and by Public Official D to request this advisory. You have submitted facts that may be fairly summarized as follows. Pursuant to its mandate under the [Act and cite], to [quote], the Department awards grants authorized by various state and federal statutes. The Department's Unit E awards and administers most of the grants issued by the Department, including grants issued through the Department's F Program. Unit E awards F Program grants to [types of entities] for projects involving the [types of projects]. The F Program is administered by Unit E's G Office in [city] and its [number] H Offices across the Commonwealth. The F Program grant process begins with the announcement of grant rounds via the [publication], the Department's website, news releases, and mailings to potential applicants. Grant applicants are supplied with information about the types of grants available, eligibility requirements for grantees and Confidential Opinion, 07 -016 November 7, 2007 Page 2 grant projects, selection criteria for grant applications, and the grant process through the aforesaid announcements, Unit E's grants manual, and public workshops conducted by Unit E. Grant applications are submitted to Unit E's G Office, where staff distributes the applications to Unit E's H Offices based on the locations of the grant projects. Proposed grant projects that have statewide impact rather than just regional effects are retained and reviewed by G Office staff. The H Offices rate and rank the grant applications distributed to them. You state that the application of an H Office staff's specialized knowledge in assessing the needs and capabilities of the [types of entities] that comprise the grant community in that particular region is critical to that H Office's rating and ranking process. The H Offices then submit their recommendations for funding to Unit E's G Office, where staff reviews the ratings submitted for the regional projects for accuracy and overall consistency. The G Office staff works with the H Office staff to rank the grant applications and determine funding levels. You note that the grant applications compete for funding not only with other grant applications from the same region but also with applications from the other regions. As the next step in the grant process, Unit E staff compiles a list of recommended regional and statewide grant projects and funding levels. The list is first reviewed by the Unit E 1 and then by the J. The list is ultimately cleared with Public Official D or a designee. Awards to successful applicants are publicly announced and grant agreements are executed. Upon request, the Department makes available to the public the names of unsuccessful applicants, grant agreements with successful applicants, the grant amounts requested by the applicants, and descriptions of the proposed projects. Employee C is an A in both Unit E's K H Office, which covers [number] counties, and Unit E's L H Office, which covers [number] counties. Both H Offices are within Unit E's M Division. You have submitted copies of Employee C's official Department position description and the job classification specifications for the position of A (job code [number]), both of which documents are incorporated herein by reference. You state that Employee C is responsible for supervising an N in each of the two H Offices under her management. Employee C also is responsible for providing guidance and information about Unit E's grant program to potential applicants through meeting with potential applicants and participating in workshops conducted by Unit E. Employee C and her two subordinates, hereinafter referred to as Subordinate Employee 1 and Subordinate Employee 2, divide up the counties covered by the two H Offices. Subordinate Employee 1 handles the delivery of grant services to all [number] counties in the K region; Subordinate Employee 2 covers [number] of the [number] counties in the L region; and Employee C covers the remaining [number] counties in the L region. With respect to the processing of grant applications, Employee C is responsible for using the criteria published in Unit E's grants manual to rate and rank the applications for regional projects from applicants in the [number] counties that she covers in the L region. Employee C also reviews the rating and ranking of applications done by her two subordinates. Employee C is responsible for submitting recommendations for funding of projects in the K and L regions to Unit E's G Office and meeting with her two subordinates and G Office staff to review project information and rankings after G Office staff has checked the ratings for accuracy and reviewed how the projects rank in relation to budget allocations Confidential Opinion, 07 -016 November 7, 2007 Page 3 for each region. You state that at this point, the role of H Office staff, including Employee C, ends with respect to evaluating and rating grant applications. Employee C also has certain duties with respect to the administration of grants in the [number] counties that she covers in the L region. As to those grants, Employee C is responsible for performing site inspections on acquisition and development projects at the request of the G Office as part of the closing out process for a grant after the project has been completed. At the invitation of organizations that have been awarded grants, Employee C also serves on project steering committees to provide technical assistance on grant projects in her [number] counties. Employee C is also responsible for supervising Subordinate Employee 1 and Subordinate Employee 2 in their performance of the aforesaid administration duties for grants awarded in the counties that they cover. You state that as a member of H Office staff, Employee C has no other role in the administration of grants. You state that on [date], Unit E published in the [publication] an announcement of the availability of grants for the next two rounds of F Program grants. One round was for the period from [date] through [date]. The second round (hereinafter referred to as the Second Round ") was for the period from [date] through [date]. In the Second Round, Unit E will be considering [number] grant applications, [number] of which are for projects in the counties covered by Employee C in the L region. The amount of grant funding to be awarded by Unit E in the Second Round will range from $[amount] to $[amount]. Employee C's sibling, Individual 0, is employed as the [title] with Organization P. You state that Organization P is a statewide coalition of over [number] [types of entities] that promote [certain activities]. You further state that Organization P is not an autonomous organization but rather is "within" the Q Department at Educational Institution R. You note that Organization P is housed at the Educational Institution R [campus] and that contributions to Organization P are made payable to Educational Institution R. You state that neither you nor Employee C has any further information with respect to: (1) the relationship between Organization P and Educational Institution R; or (2) Individual O's employment status. It is administratively noted that Organization P is partially funded by Commonwealth Department S. It is additionally noted that according to various websites, including the websites of Organization P and Governmental Entity T, Organization P was established by Commonwealth Department S. Educational Institution R has one grant application pending with Unit E in the Second Round. The application is for $[amount] in grant funds to construct enhancements to U (hereinafter referred to as the Facility "). The Facility is owned by Educational Institution R. The Facility is located in one of the counties in the L region for which Subordinate Employee 2 reviews grant applications. You state that Organization P is not involved in any way with the grant project for the Facility. You pose several specific inquiries based upon the above submitted facts. You first ask whether it would be a conflict of interest under Section 1103(a) of the Ethics Act for Employee C to perform her normal job duties as an A in Unit E with respect to the F Program. If Employee C would have a conflict of interest under the submitted facts, you seek answers to the following three additional inquiries: 1. Whether Employee C's removal of herself from all involvement in Unit E's consideration of the grant application from Educational Institution Rwould be Confidential Opinion, 07 -016 November 7, 2007 Page 4 sufficient to avoid the conflict of interest; 2. Whether the H Office Employee in the K H Office (Subordinate Employee 1) could perform Employee C's role in the consideration of the grant application from Educational Institution R; and 3. If the answer to either of the two questions immediately above would be "no," whether there would be a way in which Employee C could perform her job duties as an A in Unit E's K and L H Offices in a manner that would not violate the Ethics Act. With respect to this question, you state that reviewing grant applications for the Second Round would constitute 70 to 75 percent of Employee C's work and discussing future grant projects with prospective applicants with regard to projects to be submitted at later dates would constitute another 20 percent of her work. With respect to your inquiries, you state that the Department does not have a formal mechanism in place to delegate Employee C's authority to another Department employee in a situation such as the one at issue in this matter because the Department has not viewed such a situation to require any delegation of authority under the Ethics Act. By letter dated August 28, 2007, you were notified of the date, time and location of the executive meeting at which your request would be considered. III. 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, this 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. In the capacity as an A for the Department, Employee C 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 position description and the 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. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 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 pertaining to conflicts of interest are defined in the Ethics Act as follows: Confidential Opinion, 07 -016 November 7, 2007 Page 5 § 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, 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. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. The use of authority of office includes more than mere voting; for example, it includes discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In applying the above provisions of the Ethics Act to your first question, you are advised as follows. Based upon the facts before us, the necessary conclusion is that Employee C would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to the proposed Department grant to Educational Institution R because Employee C's sibling, Individual 0, is not an employee of Educational Institution R. The facts before us provide that Employee C's sibling is the [title] of Organization P, an organization established by Commonwealth Department S. Although Organization P is housed at an Educational Institution R campus and contributions to Organization P are made payable to Educational Institution R, there are no facts before us to suggest any basis for concluding that Employee C's sibling is an employee of Educational Institution R Confidential Opinion, 07 -016 November 7, 2007 Page 6 rather than of Organization P. Therefore, based upon the facts before us, you are advised that absent some basis for a conflict of interest other than the sibling's employment with Organization P, Employee C would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to the proposed Department grant to Educational Institution R where Organization P would not have any involvement with the proposed grant project. Given our response to your first specific question, the remainder of your questions need not be addressed. 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 V. IV. CONCLUSION: As an A with Commonwealth Department B ( "the Department "), Unit E, Commonwealth Employee C (hereinafter referred to as "Employee C ") would be considered a "public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Under the facts before this Commission, as the [title] of Organization P, an organization established by Commonwealth Department S and housed at Educational Institution R, Employee C's sibling is an employee of Organization P and not of Educational Institution R. Absent some basis for a conflict of interest under the Ethics Act other than the sibling's employment with Organization P, Employee C would not have a conflict of interest with respect to a proposed grant from the Department to Educational Institution R where Organization P would have no involvement with the proposed grant project. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair