Loading...
HomeMy WebLinkAbout89-502 StermerMr. Rob A. Stermer Water Quality Specialist Pottsville District Office 108 S. Claude A. Lord Blvd. Pottsville, PA 17901 Dear Mr. Stermer: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 7, 1989 89 -502 Re: Conflict of Interest; Water Quality Specialist, DER; Purchase of Realty Requiring DER Approval This responds to your letter of January 20, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a Water Quality Specialist in purchasing a tract of land for a subdivision when approval is required by DER and a permit must be issued by the Municipal Sewage Enforcement Officer. Facts: You state that you are currently employed by the DER Bureau of Water Quality Management as a Water Quality Specialist with job responsibilities consisting of the administration of the Pennsylvania Sewage Facilities Act (537) within Carbon and Schuylkill Counties. You note that part of your responsibilities include the review of new land development planning modules and the evaluation of individual sewage enforcement officer performance. After advising that you are considering purchasing a tract of land in Carbon County with the intention of subdividing it into individual building lots, you note that such action would require not only DER planning approval but also the subsequent permit issuance by the Municipal Sewage Enforcement Officer. After indicating that you would not be involved in any official capacity with the proposal in which you would have a financial interest, you conclude by requesting advice from the Ethics Commission regarding an interpretation of the matter. Mr. Rob A. Stermer February 7, 1989 Page 2 Discussion: As a Water Quality Specialist for DER, you are a public employee within the definition of that term as set forth in the Ethics Act and the Regulations of this Commission. 65 P.S. §402; 51 Pa. Code S1.1. As such, you are 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. S403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee 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 /employee 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 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 Mr. Rob A. Stermer February 7, 1989 Page 3 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph of Section 7. 65 P.S. 403(d). Under the above provision of . law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. S401. In applying the above provisions of law to the instant matter, the Ethics Act does not per se preclude you from having outside private business interests. Goodman, Opinion 88 -001. However, if your private business financial interests impinge upon your duties as a public employee, then a conflict would arise under the Ethics Act. This would be so even though the financial interests would be considered indirect in nature. Welz, Opinion 86 -001. Likewise, a conflict would exist if you would have a personal interest in some matter which would come before you in your capacity as a public employee. Delano, Opinion 88 -008. Therefore, in the event that any matter (9) Mr. Rob A. Stermer February 7, 1989 Page 4 concerning the realty that you would purchase for subdivision would come before you, you could not participate or take action on that matter. In addition, you would have to notify your supervisor in writing of your recusal together with the reasons. It is expressly assumed for purposes of this advice that you have not used the status of your position or confidential information as a means in whole or part of obtaining the property in question. Further, it is assumed that you will not use the status of your office as a means of obtaining any necessary approvals or permits. Finally, you may not use public office as the means to carry on your business activities nor may you use public office, personnel, supplies, equipment or phones in furtherance of your private business. Dorrance, Order 456. 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 Water Quality Specialist in DER, you are a public employee subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act, you may purchase a tract of land for subdivision purposes subject to the qualifications and limitations noted above. Further, under Sections 3(a) and 3(d) of the Ethics Act, in the event that any matter relating to the realty in question would come before you in your capacity as public employee, you would have to recuse yourself, notify your superior in writing together with the reasons for your recusal. 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. Rob A. Stermer February 7, 1989 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. Sincerly, Vincent . Dopko, General Counsel