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HomeMy WebLinkAbout90-518 HolmanSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1990 Mr. Clyde C. Holman 90 -518 R.D. #1, Box 1721 Locust Valley Barnesville, PA 18214 Re: Conflict, Public Employee, Contracting, House of Representatives, Brokerage, Solid Waste. Dear Mr. Holman: This responds to your letter January 23, 1990 in which you requested advice from the State Ethics Commission. Issue: Whether a staff member in the office of a Pennsylvania Senator under the Public Official and Employee Ethics Law may privately engage in the activity of brokerage of solid waste. Facts: You are currently an Administrative Assistant to a State Senator. You inquire as to whether you may possibly engage in the brokerage of solid waste. Due to the difficulties relating to the disposal of refuse, you would like to represent a company that would negotiate a contract between a municipality, collective municipalities, associations, authorities, or individual solid waste haulers and landfills. You would not at any time intend to sell, influence or attempt to influence any state agency, contract or bid relative to this venture. You do not intend to have any contracts or transactions involving the Commonwealth nor do you intend to use your position to secure privileges to obtain special consideration. Before you attempt any venture, you would like to know if a conflict would arise regarding your participation in such a business. You know that some legislators are involved in similar types of business such as brokerage; however, you would appreciate knowing whether there would be any restrictions on you regarding participating in this type of activity. You conclude by requesting advice as to whether such activity would be a conflict under the Ethics Law. Discussion: As a Legislative Assistant for a Pennsylvania Senator, you are public employee within the definition of that Mr. Clyde C. Holman Page 2 term as set forth in the Public Official and Employee Ethics Law and hence are subject to the provisions of that law. 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 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Mr. Clyde C. Holman Page 3 Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 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. Finally, contracting restrictions as to public officials /employees are provided in Section 3(f) of the Ethics Law as follows: Section 3. Restricted activities. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or Mr. Clyde C. Holman Page 4 administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities; however, the public official /employee may not use the authority of office for the advancement of his own personal financial gain. Thus, although you are not prohibited under Section 3(a) of the Ethics Law from representing a company which would contract for the disposal of solid waste, you could not perform your private business using Commonwealth facilities or personnel. In particular you could not use the telephone, postage, staff, equipment, research materials, personnel or any other printed /drafted material as a means, in whole or part, to carry out your private business activities. In addition, you could not during Commonwealth working hours, solicit members of the Senate or others to promote or conduct your brokerage for solid waste. Subject to the qualifications noted above, Section 3(a) of the Ethics Law would not prohibit you from entering into the private business arrangement. As to Sections 3(b) and 3(c) of the Ethics Law, you are reminded of these provisions, not to suggest that there would be any wrong doing on your part, but merely for the purpose of supplying a complete response to your inquiry. As to Section 3(f) of the Ethics Law quoted above, this provision of law has strict requirements whenever a public official /employee would contract with his governmental body. The term governmental body with which a public official or public employee is or has been associated" is defined as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. Mr. Clyde C. Holman Page 5 Under the above quoted definition, it is clear that the governmental body with which you are associated would be the Senate. Accordingly, under Section 3(f) of the Ethics Law, any contract that you or the company, the business with which you are associated, would negotiate with your governmental body would have to be awarded through an open and public process including prior public notice and subsequent public disclosure if the contract is $500.00 or more as per the requirements of Section 3(f). In addition, Section 3(f) also restricts the award of sub- contracts. Thus, if the governmental body with which you are associated entered into a contract with a given individual or entity who in turn sought to enter into a sub- contract with you or the business with which you are associated, such contracting would also be subject to the requirements of Section 3(f) of the Ethics Law noted above. Finally, if you or a business with which you are associated enter into such a contract or sub - contract after complying with the restrictions of Section 3(f), you as a public employee would be prohibited as to the implementation or administration of that contract. Therefore, in order for contracting to be allowed under the Ethics Law, strict compliance with the provisions of Section 3(f) of the Ethics Law as outlined above must be followed. Unless the restrictions of Section 3(f) of the Ethics Law are complied with, such contracting would be prohibited. 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 a Legislative Assistant to a Pennsylvania Senator, you are public employee subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not preclude you or a business with which you are associated from providing brokerage of sewage services, you could not use the authority of office to obtain such business and such business activity may not be conducted using Commonwealth facilities or personnel. Under Section 3(f) of the Ethics Law any contract or sub- contract between you or a business with which you are associated and the governmental body with which you are associated must be awarded through an open and public process, if valued at $500.00 or more, with prior public notice and subsequent public disclosure. In addition, if a contract is awarded you may not in your capacity as public employee have any supervisory overall responsibility for implementation or administration of the contract. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. Clyde C. Holman Page 6 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, Vincent . Dopko, Chief Counsel