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HomeMy WebLinkAbout89-571 VayanskySTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1989 Mr. Thomas R. Vayansky 89 -571 R.D. #1, Box 165 Belle Vernon, PA 15012 Re: Conflict of Interest, Public Employee, Joint Venture, District Mining Manager, DER. Dear Mr. Vayansky: This responds to your letter of August 21, 1989 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a district mining manager in DER from investing in a joint venture to acquire a farm and rent the existing structures and subdivide or sell portions of the land. Facts: You are currently employed in the Department of Environmental Resources, hereinafter DER, as a District Mining Manager in the Pittsburgh office. You are interested in investing in a joint venture to acquire a farm and to rent the existing structures, improve the ground, subdivide the grounds, sell any portion of the land, advertise the sale for the portions of the land and maintain the land. As a managing participant in the joint venture, you would not participate in the management or control of the day -to -day operations and the joint venture would not conduct business in counties covered by the Pittsburgh Regional office of DER. You inquire as to whether such action would be a conflict and also as to whether your wife could be an investor instead of you. Discussion: As a public employee as P.S. §402; 51 Pa. provisions of the applicable to you. District Mining Manager in DER you are a that term is defined in the Ethics Law. 65 Code S1.1. As such, you are subject to the Ethics Law and the restrictions there are Section 3(a) of the Ethics Law provides: Mr. Thomas R. Vayansky Page 2 Restricted Activities 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: "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. "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 has a financial interest. 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. Mr. Thomas R. Vayansky Page 3 In applying the above provisions of the Ethics Law to the instant matter, it is noted that the Ethics Law does not per se preclude a public official /employee from having outside business interests provided that individual does not use the authority of office for the advancement of his own private pecuniary benefit. Pancoe, 89 -011. However, the Ethics Law imposes a duty upon you to insure that your activities in your private business interest do not transgress upon your public employment. In this regard, you may not use Commonwealth facilities, personnel, equipment, or telephones, or hours of public employment to conduct your private business interest. Pancoe, Opinion, supra. In addition, if in your public employment it would'be necessary for you to pass upon or somehow become involved with some matter involving the joint venture, Section 3(j) of the Ethics Act would require your abstention and you must note that in a written memorandum filed with your supervisor. Subject to the above restrictions, the Ethics Law would not preclude your participation in the joint venture. As to the possibility of your wife becoming an investor, the Ethics Law would not preclude such action on her part assuming that she is not a public official or public employee under 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 Act. Conclusion: As a District Mining Manager for DER you are a public employee subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not preclude you from entering into an outside joint business venture, you could not further your business activities during Commonwealth time nor could you use Commonwealth personnel facilities supplies or telephones to further your private business. In addition, if a matter involving the joint venture comes before you in your official capacity, you must abstain and note your conflict in a written memorandum filed with your supervisor. Lastly, the propriety of the proposed conflict 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 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. Thomas R. Vayansky Page 4 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, Vincent . Dopko, Chief Counsel