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HomeMy WebLinkAbout85-555 JohnsonMr. Melvin Johnson 2428 Garrison Avenue Harrisburg, PA 17110 STATE ETHICS COMMISSION 308 FINANCE BUILDING BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 June 19, 1985 ADVICE OF COUNSEL 85 -555 Re: Conflict of Interest, Contract Compliance Officer, Private Reception for Contractors Dear Mr. Johnson: This responds to your letter of May 8, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a private reception may be held at your home for contractors while you are employ d by the Department of General Services as a contract compliance officer. Facts: You are currently employed as a contract compliance officer for the Pennsylvania Department of General Services. You have been asked it a group of contractors could use your home for a reception for Pennsylvania legislators. You will not be paid for the use of your home. The reception will be hosted by the contractors. In your position with the Department of General Services, you perform work relating to the contract compliance review of statewide projects involving construction and vendor activity. You generally are responsible for monitoring contract compliance with equal employment opportunity and affirmative action requirements. In addition to the above, you also perform the following functions: Prepares a variety of reports and recommendations to higher level management to support findings, analysis and recommendations of compliance reviews, audits and conciliation meetings to aid in policy formation and decision making. Participates in pre- construction and initial job conferences with bidders and pre -award conferences to review /explain equal opportunity requirements and review procedures. Prepares mad issues show cause findings and letters of non - compliance to contractorse/venbors. Mr. Melvin Johnson June 19, 1985 Page 2 1 Assists legal counsel in the preparation of litigation should conciliation efforts fail. Prepares material , participates r. kublic hearings, and gives testimony at hearings, legal adminisi:rative triaulans and courts, based upon facts discovered c!uri nc investigation. Works with General Counsel to facilitate suspensions of contracts when technical violations of law are found. You have asked whether, under the State Ethics Act, there would be any conflict of interest in relation to the proposed activity. Discussion: As a contract compliance officer, in the Department of General Services, you are a public employee as that term is defined in the State Ethics Act. 65 P.S. §402. Your conduct must, therefore, conform with the requirements of the Act. Generally, the Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Because you indicate that there will be no financial remuneration for the contractors use of your home, it does not appear that Section 3(a) would be applicable in this situation. It should be noted, however, that "financial gain" may be obtained in various forms, you, therefore, are best advised not to accept anything of value in relation to this situation. The acceptance of such pecuniary item(s) could appear to be a use of your position as a contract compliance officer in violation of Section 3(a). In addition to the foregoing, the Commission may address other possible areas of conflict. 65 P.S. §403(d). Generally, the Commission must review this authority in light of the intent of the Act as set forth in Section 1 thereof. 65 P.S. §401. That section provides that the financial interests of a public employee should not conflict with or appear to conflict with the public trust. Within the parameters of Section 403(d), the Commission has determined that such a conflict arises when a public employee serves one or more interests that are adverse, Alfano, 80 -007; serves in incompatable offices, Nelson, 85 -009; accepts compensation to which he is not entitled, Mr. Melvin Johnson June 19, 1985 Page 3 JJC /sfb Domalakes, 85 -010 or otherwise creates by his conduct, the appearance of a conflict of interest. See Matson, No. 220. Such a conflict or appearance could arise, in that, you have inspection and review authority over contractors. If you are called upon to review or take action on behalf of the Depatment regarding one of the contractors who has used your home, a conflict or the appearance thereof could exist. In that regard, you should abstain from acting in such a matter. In addition, the appearance of such a conflict could be lessened by i nformi ng the Department of your plans and properly recordi ng such notification. Thus, while the Act would place no outright restriction on the activity proposed, you should be cognizant of the possible public perceptions. Conclusion: The Ethics Act does not prohibit you, as a contract Compliance Officer for the Department of General Services, from allowing private contractors to use your home for a reception where no remuneration will be paid. You should, however, be aware of the potential public perceptions and avoid any appearance of a conflict of interest. Such may be accomplished by following the advice contained herein. Pursuant to Section 7(9)(ii), this 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, providing 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Si ncerely, onti o General Counsel