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HomeMy WebLinkAbout89-596 DeFrancescoMr. Luigi DeFrancesco R.D. #1, Box 202A Guys Mills, PA 16327 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 20, 1989 89 -596 Re: Conflict, Public Employee, DER, Private Manufacturing Business of Spouse, DER Approvals. Dear Mr. DeFrancesco: This responds to your letter of November 11, 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 employee of the Department of Environmental Resources from being involved with his spouse's manufacturing company when certain approvals of the Department may be required. Facts: You are currently employed by the Department of Environmental Resources, hereinafter DER, in the Bureau of Waste Management in the Meadville Regional Office in the position of Sanitary Engineer and are responsible for the review of permit applications for municipal, residential and hazardous waste landfills. In addition you provide technical reviews and issue or deny permits based upon considerations of technical findings and recommendations. You indicate that your wife intends to form a manufacturing company to process marketable products from discarded automobile tires. Although your involvement would be limited to the design of machines which would perform the required work to process the tires, DER has a current interim policy for the storage of waste tires and tire derived materials. From a supplied photocopy of a DER policy statement, you render an interpretation that a marketable product derived from waste tires is not regulated but the storage of such tires for processing might be regulated. In addition, you interpret the policy to mean that although a permit is not required, a storage plan would have to be approved by DER if there are more than fifteen hundred tires stored in the enclosed building. If such approval were required, the DER approval would be handled by the Mr. Luigi DeFrancesco Page 2 waste management bureau in the section in which you are currently employed. You conclude by requesting advice of the commission as to whether a conflict would exist if the manufacturing company is started due to your employment in the Bureau of Waste Management of DER. Discussion: As a Sanitary Engineer for DER, you are a "public employee" as that term is defined in the Ethics Law and hence you are 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 Mr. Luigi DeFrancesco Page 3 unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child., brother or sister. "Business with which Any business in which the of the person's immediate director, officer, owner, financial interest. he is associated." person or a member family is a employee or has a 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 and 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 instant matter, initially it must be noted that your wife is a member of your "immediate family" as that term is defined under the Ethics Law. Secondly, since it appears that your spouse would own the manufacturing company, such would be a "business with which you are associated" as that term is defined in the Ethics Law. Because of the foregoing, you could not use the authority of office or any confidential information to obtain a private pecuniary benefit for yourself or your wife or the business with which you are associated. Although the Ethics Law does not as a general rule prohibit outside employment or the association with a business entity, you could not use Commonwealth facilities or personnel for your private business activity nor could you do such work during Commonwealth working hours. See Pancoe, Opinion 89 -011. In addition, if it is necessary to obtain approvals from the Bureau of Waste Management of DER for the storage of these tires, you would have a conflict in that matter and accordingly you could not participate in any matter regarding that approval. In addition, because of your conflict, Section 3(j) of the Ethics Law would require you to publically disclose your conflict as well as file a written memorandum to that effect with your supervisor(s) in DER. 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 Mr. Luigi DeFrancesco Page 4 not involve an interpretation of the Ethics Act. Specifically not this either nterestAct. Governor's As a Sanitary Engineer for DER, you are a public employe subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit your employment or association with a manufacturing company which your wife would establish for the purpose of processing discarded automobile tires. However, Section 3(a) of the Ethics Law would not allow you to use the authority of office to obtain a private pecuniary benefit for yourself, your wife or the business with which you are associated. In particular, you could not use Commonwealth facilities, personnel, or working hours to perform your private business activities. In addition, if the business would seek any approvals from DER, you would have to abstain from participating and advise your supervisors in a written memorandum of your conflict as per the requirements of Section 3(j) of the Ethics Law. 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 requester 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 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 §2.12. such. Sincerely, Vincent . Dopko, Chief Counsel