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HomeMy WebLinkAbout89-539 SokolJohn L. Sokol, Jr., P.E. 89 -539 Chief Engineer PA Turnpike Commission P.O. Box 8531 Harrisburg, PA 17105 Re: Conflict of Interest, Pennsylvania Turnpike Commission, Public Employee, Deputy Executive Director /Chief Engineer, Immediate Family, Adult Son Dear Mr. Sokol: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 8, 1989 This responds to you letter of April 6, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon your dealing with a company that hires your son and that has involvement with your governmental body. Facts: You state that you were hired by the Pennsylvania Turnpike Commission, hereinafter PTC, as a Senior Civil Engineer in January of 1986, and that you are responsible for all construction activities from the Ohio State line to Harrisburg. After noting that the firm of Buchart Horn had no projects within your area of responsibility during your employment as Senior Civil Engineer, you advise that your son Christopher who is 23 years old was hired by Buchart Horn, Inc., in an entry level position after he graduated as a Civil Engineer. You state that your son who is totally independent resides in York, Pennsylvania and has been assigned to a project for PennDot and another project in the State of Louisanna. After noting that you were promoted to the position of Deputy Executive Director /Chief Engineer for PTC on February 7, 1989, you state that you are responsible for all engineering for the entire PTC including planning, design and construction, wherein you participate in the consulting process. You advise that from time to time the firm Buchart Horn submits letters of interest for PTC projects and currently has a large on -going design project on the Beaver Valley Expressway for PTC. You conclude by posing two questions under the Ethics Act: what restrictions are imposed upon. your John L. Sokol, Jr., P.E. May 8, 1989 Page 2 dealings with Buchart Horn and secondly what restrictions are imposed upon your son concerning project assignments with Buchart Horn on PTC projects. Discussion: As a Deputy Executive Director /Chief Engineer for PTC, 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. 5402; 51 Pa. Code S1.1. As such, your subject to the provisions of the Ethics Act. 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). Section 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of h.s immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. S402. John L. Sokol, Jr., P.E. May 8, 1989 Page 3 Immediate family as defined would not include your adult son who is 23 years old. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon your dealing with a company that hires your adult son. 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). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. 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. S403(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 John L. Sokol, Jr., P.E. May 8, 1989 Page 4 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. 5401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. In relation to the above cited sections of law, the Commission has determined that the definitional limitations applicable to the other Sections of the Act are not relevant to questions addressed under Section 3(e). Leete, Opinion 82 -005. As such, the Commission has placed restrictions upon various actions of public official's and employees when acting upon matters that involve relatives outside of the previously cited definition. O'Reilly, Opinion 83 -012. Thus, for example, the Commission has determined that a public official may not participate in the employment selection process where the official's adult son is an applicant. See O'Reilly, Opinion 83 -012. Likewise, in Leete, Opinion, 82 -005, the Commission concluded that a county commissioner could not sit on a salary board and vote the salary of her brother as Director of the county planning agency without engaging in conduct which would appear to conflict with the public trust. See also Lewis, Advice 85 -558; Ceraso, Advice 85 -575. Although there is no prohibition under section 3(a) of the Ethics Act as previously noted as to the above activity, the Commission has determined under Section 3(d) that this type of activity creates the appearance of a conflict of interest where a public official uses his public office in favor of a relative who is not within the definition of "immediate family." Therefore, under Section 3(d) of the Ethics Act, you may not participate in any matter that involves the company the would hire your son, Buchart Horn, and your must note that publicly. See Yerusalim, Opinion 89 -003. Since your son is not a public official or employee, he would not be subject to the provisions of the Ethics Act, other than Section 3(b), supra and hence would not be restricted concerning project assignments with John L. Sokol, Jr., P.E. May 8, 1989 Page 5 Buchart Horn involving the PTC. See Yerusalim, supra. 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 Deputy Executive Director /Chief Engineer for PTC, you are a public official subject to the provisions of the State Ethics Act. Your son is not a member of your "immediate family" as that term is defined in the Ethics Act. Although there is no prohibition under Section 3(a) of the Ethics Act upon your dealing with the firm that hired your son, under Section 3(d) of the Ethics Act, you may not participate in any matter with the firm that hired your son and you must note that publicly. 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. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, 6 Vincent 3. Dopko, General Counsel