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HomeMy WebLinkAbout90-509 SchwartzMr. David E. Schwartz 90 -509 Commonwealth of Pennsylvania Developmental Disabilities Planning Council Room 569, Forum Building Commonwealth Avenue Harrisburg, PA 17120 Re: Conflict, Public Employee, Travel, Camphill Communities, Developmental Disabilities Planning Council, Executive Director. Dear Mr. Schwartz: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 15, 1990 This responds to your letter of January 8, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any restrictions or prohibitions upon the Executive Director of the Developmental Disabilities Planning Council from speaking at an international meeting of Camphill communities for which he will receive no fee, but will receive expenses for plane and train fare, and lodging. Facts: You have been invited to speak before an international meeting of Camphill Communities in Aberdeen, Scotland from April 18th through 21st, 1990. The Camphill Communities are intentional communities for individuals with mental retardation and for those individuals who wish to live and work with them. Camphill communities are nonprofit organizations wherein the Community members work without salary. After noting that several speakers have been asked to represent developments in various nations, you have been asked to represent public policy developments in the United States. You will not receive a fee for speaking but you will be reimbursed for economy plane fare and train fare to Aberdeen as well as lodging in the community. The Developmental Disabilities Planning Council, hereinafter Council, of which you serve as executive director holds a contract with a Camphill community in Pennsylvania. In Mr. David E. Schwartz Page 2 particular the contract runs for three years to fund a project at fifty thousand dollars per year to develop regulatory alternatives. You indicate that there is no connection between the proposed speaking date to the international group and the Council's existing contract with Camphill Kimberton Hills. Although Kimberton Hills is part of the same international movement, you have been invited by a different branch of that movement; your expenses will be reimbursed either by the International Association in Scotland or the North American Association in New York state. Finally you note that the current contract is a time limited one and you routinely exclude yourself from the proposal selection system and all selection procedures. You conclude by requesting advice as to whether you may formerly accept this invitation. Discussion: As the Executive Director for the Developmental Disabilities Planning Council of the Commonwealth of Pennsylvania, you are a public employee as that term is defined under the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code 5101. Section 3(a) of the Ethics Law 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 Mr. David E. Schwartz Page 3 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. Section 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 the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the provisions of Section 3(a) of the Ethics Law quoted above to the instant matter, it appears that you have been asked in your capacity as Executive Director of the Council to speak on recent developments in the United States on the area of mental retardation /disabilities. Since you have indicated that you will not accept a fee for the service but will only receive reimbursement for travel and lodging by either the International or North American Association, the receipt of those expenses would not be prohibited by Section 3(a) of the Ethics Law. In Richardson, Opinion 89 -017 the Commission concluded that presidents of the State System of Higher Education and faculties /administrators could travel to foreign countries to tour higher educational facilities relative to an exchange plan where the expenses for the trip were paid for by the foreign countries provided the expenses related to the purpose of the trip. Since it appears in this case that you are giving this speech as part of your public service as Executive Director of the Council, you would not be prohibited from receiving the lodging and plane fare provided the lodging and travel is strictly limited to the international meeting, that is, that you would not be reimbursed for any side trips or lodging that would not relate to the meeting and which would be private or recreational in nature. Finally, as to the fact that a Camphill Community has a three year contract with the Council, such a contract in and of itself would not create a conflict assuming that you have no financial interest in the Camphill Community and assuming that you have not been involved in the proposal or selection procedures as to that contract. Mr. David E. Schwartz Page 4 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. Conclusion: As Executive Director of the Developmental Disabilities Planning Council you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit a trip to speak at an international meeting of Camphill communities on the subject of public policies developments in the United States for which no fee would be received but transportation and lodging would be reimbursed by either the International or North American Association since the speaking engagement relates to the public service and since it is assumed that the travel and lodging relates to the purpose of the trip without any paid side trips which would be private or recreational in nature. 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 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, I/ Vincent Dopko, Chief Counsel