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HomeMy WebLinkAbout85-571 DillMr. Russell C. Dill 85 - 571 218A Clifford Avenue Apollo, PA 15613 Re: Public Employee, Department of Environmental Resources, Member, Board of Director, Non - Profit Environmental Corporation Dear Mr. Dill: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 13, 1985 ADVICE OF COUNSEL This responds to your letter of July 11, 1985, wherein you request the advice of the State Ethics Commission. Issue: Whether there is a conflict of interest where you are employed in the Department of Environmental Resources, while you simultaneously serve as a Director in a Non - Profit Environmental Corporation. Facts: You are currently employed by the Department of Environmental Resources, hereinafter the Department, as a Surface Mine Conservation Inspector II. In this position you perform technical work in the inspection of surface mines. An employee in this class inspects surface mining operations in an assigned geographical area of the Commonwealth to determine compliance with Commonwealth surface mining laws and regulations. Work involves notifying mine operators of violations and requiring their correction, enforcing surface mining laws and regulations, explaining surface mining laws to mine officials and operators, promoting voluntary compliance with surface mining laws, investigating mining accidents, inspecting mining machinery, and preparing reports on inspections and investigations. An integral part of the work involves establishing and maintaining effective working relationships with mining personnel to promote voluntary compliance with mining laws and regulations, and safety regulations, and to provide direct advice and counsel on a variety of safety problems. Work may involve lead worker responsibilities over lower level inspectors assigning and reviewing their work performance. Mr. Russell C. Dill August 13, 1985 Page 2 You are also a member of the Board of Directors of the Cowanshannock Creek Watershed Association, hereinafter the Association. The Association is a non - profit organization formed to conduct conservation and other activities aimed at improving the water quality of the Cowanshannock Creek. You have supplied the by laws of the Association as well a a listing of the type of activities in which the Association is engaged. We note that to some extent the Association is involved in monitoring mine discharges, dealing with coal companies and state agencies and bureaus such as the Bureau of Forestry within the Department, and dealing with Federal programs such as the Rural Abandoned Mine Program. You have requested the Commission's advice as to whether there is any conflict if you continue to serve as a Director in the Association while you are employed by the Department. Discussion: As a surface mine conservation inspector within the Department, you are a public employee as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements thereof. Peters, 82 -505; Leone, 82 -553. Generally, the Ethics 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). The Act further defines Business as: Section 2. Definitions. "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. 65 P.S. 402. Thus, even though you are associated with the Association it is not a business as outlined in the Act. Mr. Russell C. Dill August 13, 1985 Page 3 The Commission has, however, on a number of occasions addressed issues similar to the one presented herein. The Commission has generally held that a public employee may not use his public position to forward or advance the interests of such a non - profit entity. See Grove, 81 -013; Paperelli, 84 -520. These rulings have been issued generally in light of Sections 1 of the Ethics Act, which requires public officials and employees to avoid even the appearance of a conflict of interests. Based upon the foregoing, the Commission has previously ruled that an officer of a state -wide professional association may not, under the Ethics Act, also be a member of a licensing board that regulates the members of such Association. Opinion 79 -074, Vavro; Opinion 79 -024, Lutton; Opinion 80 -007, Alfano. The Commission, however, has not prohibited membership in such ssociations. The rationale supporting this position is founded upon the concept that when an individual is responsible for playing an important role in the formulation of the Association's policy concerning, for example, legislation proposed rules, standards or other regulations that may affect the Association and /or its members, a conflict or an appearance thereof exists. In the current situation, we note that unlike the above opinions, the Association involved here and the members thereof are not regulated by the Department. Therefore, we do not believe that a direct conflict of interest exists. A concern, however, is presented in that the Association at times appears to deal in areas regarding coal mine area conservation, reclamation and evaluation. Similarly, the Association appears to also at times deal with the Department. We believe that in these situations, the appearance of a conflict may exist. This is especially so if the functions you perform as a member and Director of the Association in the above situation are similar to the functions that you perform as a public employee. You may, in such situations, be called upon to advance the interests of two distinct entities in relation to the same issue. See Miller, 85 -530. As such, you should abstain as a Director and member of the Association from participating in any matter regarding the Department, or regarding the area of work that you perform for the Department, i.e., mining and reclamation. These abstentions should be recorded in the appropriate Association records. Mr. Russell C. Dill August 13, 1985 Page 4 Likewise, as a public employee, you should abstain from participating in any matter that comes before you, wherein the Association has an interests or where the Association has been involved. Conclusion: There is no per se restriction upon your simultaneous service as a Director of a non - profit Environmental Corporation and an employee of the Department of Environmental Resources. As a public employee, you must avoid all conflicts of interest as well as the appearance of such conflicts. Such may be accomplished if you act in accordance with 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 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. 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. JJC /sfb Si John J. tino Gener• Counsel