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HomeMy WebLinkAbout88-651 SwerdonMr. Paul Swerdon 316 Susquehanna Street White Haven, PA 18661 Dear Mr. Swerdon: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 29, 1988 88 -651 Re: Conflict of Interest, Public Employee, Sanitary Engineer, DER, Public Employee's Partner Applying for Permits from DER This responds to your letter of October 3, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any restrictions or prohibition upon a Sanitary Engineer in the Department of Environmental Resources regarding the submission of permits by the employee's partner for approval to his governmental body. Facts: You state that you are presently a Sanitary Engineer IV in the Wilkes -Barre Regional Office, hereinafter Office, of the Department of Environmental Resources, hereinafter DER in the Borough of Water Quality Control Management, hereinafter Bureau. You advise that your duties in part consist of supervising the engineers who perform a part of the review process associated with granting permits for sewage treatment plants. You note that the major part of the review and all planning related issues are reviewed by the Planning Section over which you have no authority. In addition, you assert that neither you nor any of the review engineers whom you supervise have any authority to grant or deny permits other than to make recommendations to your supervisor, the Regional Water Quality Manager. You then state that since July, 1983, you have been involved in a partnership with an individual relative to owning and operating a mobile home park. After noting that you received approval for the supplementary employment, you state that your partner is not a Commonwealth employee or a member of your immediate family. You then advise that your partner wishes to expand the mobile home park. After noting that the sewage disposal at the park has Mr. Paul Swerdon November 29, 1988 Page 2 been by subsurface disposal methods with final approval having been granted by the borough sewage enforcement officer, you state that an expansion of the park would tax the current system in that a sewage treatment plant would better serve the needs of the park but such action would require two permits from the Bureau: the first for the discharge of treated sewage and the second for authorization to construct the sewage treatment plant. You conclude by requesting advice as to whether it would be a conflict under the Ethics Act for your partner to apply for these permits as an individual who would become the permittee and agent on all matters of sewage disposal. You state that you would not be acting as agent for the mobile home park, that your name would not appear on the applications and lastly that you would disqualify yourself from any manner of review of these permit applications. Discussion: As a Sanitary Engineer IV in DER, you are a public employee as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Mr. Paul Swerdon November 29, 1988 Page 3 Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. The term business with which he is associated is defined under the Ethics Act as follows: Section 2. Definitions. "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 holder of stock. 65 P.S. §402. Based upon the above definition, it is clear that since you are a partner with another individual as to the ownership and operation of a mobile home park, the latter is a business with which you are associated as that term is defined under the Ethics Act. The Ethics Act does not per se preclude you as a public employee from holding an outside business interests in a mobile home park. Goodman, Opinion 88 -001. The Ethics Act would Mr. Paul Swerdon November 29, 1988 Page 4 however impose restrictions when your private business interests would come before your governmental body wherein you serve as a public employee. The restrictions which would be imposed by the Ethics Act would be that you could not participate in matters that would come before your governmental body from your private business interest. Thus, although the Ethics Act would not restrict your partner from submitting these two permits, you could not participate or review in any fashion those permit applications. Similarly, you could not use public office in an attempt to secure approval of those permits. The Ethics Act would require that you notify your supervisor in writing that the business with which you are associated is submitting the permits and that you will not review or participate in that process because of your partnership in that business. With the foregoing restrictions, your partner may then proceed to submit the permit applications since you will have removed yourself from the potential conflict. DeLano, Opinion 88 -008. Lastly, 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. Conclusion: As a Sanitary Engineer IV in DER, you are a public employee subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above, the Ethics Act would not prohibit your partner in a business with which you are associated from applying for permits before DER. However, under the Ethics Act you may not review or participate in the permit review process and you must advise your supervisor in writing of your non participation together with the reasons for such non participation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 requestor 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. Mr. Paul Swerdon November 29, 1988 Page 5 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. Sincerely, Vincent J'. Dopko, General Counsel