Loading...
HomeMy WebLinkAbout89-567 PaceDear Mr. Pace: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 11, 1989 Mr. Fred C. Pace 89 - 567 Commonwealth of Pennsylvania Board of Claims 707 Transportation and Safety Bldg. Harrisburg, PA 17120 Re: Conflict, Public Employee, Attorney, Board of Claims, Retiree Employed per diem. This responds to your letter of August 2, 1989 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a legal member of the Board of Claims who seeks to serve on a per diem basis after his retirement from the board. Facts: Richard S. Enterline was appointed as Legal Member of the Eastern District Hearing Panel of the Board of Claims in 1979 which is a position established pursuant to the statute, 72 P.S. 4651. Panel members for the Board of Claims are engaged on a contractual basis for a period of six months at an established statutory per diem rate and Mr. Enterline worked as a Legal Member of the Eastern District Hearing Panel from 1979 through October 1983 when he was appointed to the position of Senior Counsel at the Board. Mr. Enterline served in the latter position until June 28, 1989 when he retired. Currently the Board of Claims requires an attorney knowledgeable in jurisdictional matters for the Central District. You as Chief Administrative Judge are desirous of contracting with Mr. Enterline on a per diem basis pursuant to statute for the position of Legal Member of the Central District Hearing Panel. After noting that Mr. Enterline would be receiving a retirement check for his fifteen years of state employment, you inquire as to whether their would be any restriction under the Ethics Law Mr. Fred C. Pace Page 2 because Mr. Enterline would be a contractual per diem member of the Central District Hearing Panel receiving a statutory fee of $200 a day per a portion thereof for partial days plus travel and expense were applicable. Discussion: As a legal member for the Board of Claims, Mr. Enterline would be a "public employee" as that term is defined in the Ethics Law and hence he would subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Mr. Fred C. Pace Page 3 In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of Mr. Enterline's proposed employment on a per diem basis, the Ethics Law would not restrict Mr. Enterline, as a retired former legal member and senior counsel, from employment on a per diem basis. You have noted that Mr. Enterline's prior positions and the proposed per diem position are pursuant to and hence authorized in statutory law relative to personnel of the Board of Claims. In particular, since Mr. Enterline served for fifteen years and retired, the retirement check which he would receive would be authorized in law and therefore he would not be receiving a private pecuniary benefit in contravention to Section 3(a) of the Ethics Law. Further, since you have stated that the $200.00 per diem plus travel and expenses were applicable are authorized pursuant to statute for Board of Claims personnel, the receipt of such per diem by Mr. Enterline would likewise be provided for in law and hence would not be a private pecuniary benefit under Section 3(a) of the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Specifically not addressed in this advice is the applicability of the new rules of professional conduct for attorneys. In addition, the scope of this advisory is specifically limited to the question(s) raised. Conclusion: As a Legal Member for the Board of Claims, Mr. Enterline would be a "public employee" subject to the provisions of the Ethics Law. As a public employee, Section 3(a) of the Ethics Law, would not prohibit Mr. Enterline, as a former retiree of the Board of Claims, from serving on a per diem basis where such employment is authorized by statute as to Board of Claim personnel. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 Mr. Fred C. Pace Page 4 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. VJD /emg Sincerely, , :i%P.ArN,191 01 /1/ 4 ) Vincent J1 Dopko, Chief Counsel