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HomeMy WebLinkAbout08-502 VITOSandi Vito Deputy Secretary Workforce Development 1700 Labor and Industry Building Seventh and Forster Streets Harrisburg, PA 17120 Dear Ms. Vito: ADVICE OF COUNSEL January 9, 2008 08 -502 This responds to your letter dated September 12, 2007, and your letter dated November 15, 2007, received December 6, 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 impose any prohibitions or restrictions upon the Deputy Secretary for Workforce Development for the Commonwealth of Pennsylvania Department of Labor and Industry ( "Labor and Industry "), who in a private capacity serves as a member of an honorary board of a non - profit organization, with regard to: (1) providing funding to the non - profit organization through grants from Labor and Industry; or (2) soliciting contributions for the non - profit organization from various sources. Facts: As the Deputy Secretary for Workforce Development for Labor and Industry, you request an advisory from the State Ethics Commission. You have submitted a copy of your official position description, which is incorporated herein by reference. You state that one of your duties as the Deputy Secretary for Workforce Development is to provide funding to regional entities that assist low- income women in finding employment. In a private capacity, you recently agreed to serve as a Member of the Honorary Board of Dress for Success South Central PA ( "Dress for Success "), a non - profit organization that provides office - appropriate clothing and suits for low- income women seeking employment. Vito, 08 -502 January 9, 2008 Page 2 You have submitted a copy of a document from Dress for Success titled "Resolution September 2006 — 2." It is noted that said document provides, in pertinent part, as follows: ADJUNCT BOARDS Resolved, that advisory and honorary board categories be approved as described herein: Honorary Board. The Honorary Board is an optional board and there is no limit on the number of Honorary Trustees. The Honorary Board is made up of non - voting members who are committed to the mission and who lend their names in support of the organization. Honorary Board Members are elected by the Dress for Success South Central PA Board by majority vote, hold a two -year term, and may be re- elected indefinitely, at the discretion of the Board. Honorary Board members are not required to attend meetings but may do so at their discretion. Resolution September 2006 — 2. You have also submitted a printout of the home page of the Dress for Success website at http:// www. dressforsuccess .org /affiliate.aspz ?pageid =1 &sisid =119. It is administratively noted that per the Dress for Success website, Dress for Success is a 501(c)(3) organization that relies on the financial contributions, in -kind donations, and volunteer efforts of individuals and companies, locally and around the world. You state that neither you nor anyone in your family benefits in any way from Dress for Success. Based upon the above submitted facts, you ask the following questions: 1. Whether the Ethics Act would permit you to continue funding Dress for Success with grants from Labor and Industry while serving on the Dress for Success Honorary Board; and 2. Whether the Ethics Act would permit you to solicit contributions to support Dress for Success from the following sources: (1) individuals; (2) corporations, some of which might serve on the Pennsylvania Workforce Investment Board on a volunteer basis; (3) peers in Labor and Industry or other agencies; or (4) employees who would be under your direct or indirect supervision. 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 the Deputy Secretary for Workforce Development for Labor and Industry, you are a public official /public employee and an Executive -level State Employee subject to the provisions of the Ethics Act. Vito, 08 -502 January 9, 2008 Page 3 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. "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. 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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Vito, 08 -502 January 9, 2008 Page 4 The above statutory definition of "conflict" or "conflict of interest" contains an exclusion, hereinafter referred to as the "de minimis" exclusion, which precludes a finding of a conflict of interest as to an action having a de minimis (insignificant) economic impact. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004); Kolb, Order 1322; Schweinsburq, Order 900. Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide in part that no person shall offer or give to a public official /public employee anything of monetary value 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. 65 Pa.C.S. §§ 1103(b), (c). 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. In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. The use of government time, staff, equipment, facilities, or property for non- governmental purposes — including business, personal, or political purposes —is generally prohibited and may form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.q., Confidential Opinion, 05 -001; Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka, rder 1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay, Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800 (political purposes). The State Ethics Commission has long held that government offices, facilities, equipment, and personnel are to be used for governmental purposes and not for private, business or campaign /re- election activities. See, Smythe, Order 1121; Rakowsky, Order 943; Eck, Order 787; Freind, supra; Ferlo7pinion 97 -005. You are advised that the State Ethics Commission has determined that a non- profit corporation such as Dress for Success would be considered a "business" as that term is defined in the Ethics Act (see, e.g., Soltis - Sparano, Order 1045; McConahy, Opinion 96 -006; Confidential Opinion, 07 -b18). However, based upon the submitted fact that your role with Dress for Success is limited to that of a non - voting Member of the Honorary Board, Dress for Success is not a business with which you are associated within the meaning of that term under the Ethics Act. Since Dress for Success is not a business with which you are associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Labor and Industry that would financially impact Dress for Success but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Having established the above general principles, your specific inquiries shall be addressed. In response to your first specific inquiry, you are advised that in the absence of a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you in your public capacity as the Deputy Secretary for Vito, 08 -502 January 9, 2008 Page 5 Workforce Development from providing funding to Dress for Success through grants from Labor and Industry. As for your second specific inquiry, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you from soliciting contributions for Dress for Success from (1) individuals; (2) corporations, some of which might serve on the Pennsylvania Workforce Investment Board on a volunteer basis; (3) peers in Labor and Industry or other agencies; or (4) employees who would be under your direct or indirect supervision. However, subject to the "de minimis" exclusion contained within the Ethics Act's definition of "conflict" or "conflict of interest," Section 1103(a) of the Ethics Act would prohibit you from using Commonwealth time, staff, equipment, facilities, or property to solicit contributions for Dress for Success. Additionally, you are cautioned that to engage in solicitation(s) as to person(s) under your direct or indirect supervision or authority would place you in a precarious position with respect to Sections 1103(b)/1103(c) of the Ethics Act. You are advised that the prudent course of action would be to refrain from soliciting contribution(s) for Dress for Success from person(s) under your direct or indirect supervision or authority, so as to avoid the potential for accusations relative to soliciting contributions in exchange for favorable actions. 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 the Deputy Secretary for Workforce Development for the Commonwealth of Pennsylvania Department of Labor and Industry ( "Labor and Industry "), you are a public official /public employee and an Executive -level State Employee subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Although Dress for Success South Central PA "Dress for Success ") would qualify as a "business" as that term is defined by the Ethics ct, Dress for Success is not a business with which you are associated in your capacity as a non - voting Member of said organization's Honorary Board. In the absence of a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you in your public capacity as the Deputy Secretary for Workforce Development from providing funding to Dress for Success through grants from Labor and Industry. Section 1103(a) of the Ethics Act would not prohibit you from soliciting contributions for Dress for Success from (1) individuals; (2) corporations, some of which might serve on the Pennsylvania Workforce Investment Board on a volunteer basis; (3) peers in Labor and Industry or other agencies; or (4) employees who would be under your direct or indirect supervision. However, subject to the "de minimis" exclusion contained within the Ethics Act's definition of "conflict" or "conflict of interest," Section 1103(a) of the Ethics Act would prohibit you from using Commonwealth time, staff, equipment, facilities, or property to solicit contributions for Dress for Success. Additionally, you are cautioned that to engage in solicitation(s) as to person(s) under your direct or indirect supervision or authority would place you in a precarious position with respect to Sections 1103(b)/1103(c) of the Ethics Act. You are advised that the prudent course of action would be to refrain from soliciting contribution(s) for Dress for Success from person(s) under your direct or indirect supervision or authority, so as to avoid the potential for accusations relative to soliciting contributions in exchange for favorable actions. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Vito, 08 -502 January 9, 2008 Page 6 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