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HomeMy WebLinkAbout84-548 TuecheMs. Marjorie A. Tueche Purchasing Agent Department of Commerce Bureau of Management & Administration 409 Forum Building Harrisburg, PA 17120 Dear Ms. Tueche: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 13, 1984 ADVICE OF COUNSEL 84 -548 RE: Department of Commerce; Purchasing Agent; Daughter Employed by Xerox This responds to your letter of March 5, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether any conflict of interest exist where your daughter is employed by Xerox Corporation and you, as Purchasing Agent for the Department of Commerce, purchase various items from Xerox Corporation. Facts: You are a Purchasing Agent for the Department of Commerce. As such, you are required to procure all commodities and equipment for the Department of Commerce. You state that all requests for procurement are submitted by bureaus and approved by the respective bureau directors, and that the requests are then approved by the Director of the Bureau of Management and Administration. In your capacity as a Purchasing Agent, you state that you do not have the authority to purchase anything without approval of the requesting bureau director and /or your director. Supplies ordered for the stock room must be approved by the Chief of Administrative Services within the Bureau of Management and Administration. You further state that you are generally requested to purchase specific items, and that the bureau makes the ultimate decision on which items to purchase. In the event that you are required to purchase a piece of equipment made by Xerox or any of its competitors, the selection is made by someone such as a bureau director, and you simply process the paperwork necessary to purchase the item, pursuant to the rules and regulations set forth in the Field Purchasing Manual prepared by the Department of General Services. Ms. Marjorie A. Tueche April 13, 1984 Page 2 Your daughter was recently hired by Xerox Corporation as a sales trainee. You advised us by phone on April 13, 1984, that your daughter is 22 years old and while she lives at home temporarily (during her training period with Xerox) she was not claimed as a dependent by you on your 1983 tax return. Your daughter will be in training for several months and upon successfully completing training, she will be a new business representative. However, it will be sometime before she will become an account representative. You state that you, when necessary, deal with a Xerox representative by the name of Mark Kirsch, and that your contacts with Mr. Kirsch neither directly nor indirectly involve your daughter. You have no direct or indirect business dealings with your daughter as a Xerox representative, and she gets neither credit nor compensation for any business generated by Mr. Kirsch. Your bureau director has expressed concern regarding a possible conflict of interest in light of your daughter's position at Xerox, and you have, therefore, requested advice from the State Ethics Commission. Discussion: As a Purchasing Agent for the Department of Commerce, you are a "public employee" within the definition of that term as contained in the Ethics Act. See 65 P.S. 402. As such, your conduct must conform to the requirements of the Act. The pertinent provisions of the Ethics Act include Sections 403(a) and 403(b), 65 P.S. 403(a) and (b). Section 3(a) prohibits any public employee or public official from using his public employment or confidential information received through his or her holding public employment to obtain financial gain for himself, a member of his or her immediate family, or a business with which he or she is associated. In addition, Section 3(b) precludes any person from offering a public employee anything of value based on the understanding that the official's actions will be influenced thereby. Because your daughter is not a minor or a dependent as those terms are defined in the Ethics Act, she is not considered a member of your "immediate family" as set forth in the Act. See 65 P.S. 402 and 51 Pa. Code 1.1. Thus, technically, the Ethics Act would not even apply to this situation. Nevertheless, we note that the Ethics Act also requires that you avoid even the appearance of a conflict with the public trust. See Section 1 of the Ethics Act, 65 P.S. 401. In this regard, you should be careful to avoid acquiring and transmitting to your daughter, confidential information which might benefit Xerox. For example, as a Purchasing Agent, you could not use information regarding the bids for purchase of copying equipment to enable Xerox to submit a successful bid. In this regard, even though you do not, and most likely will not, deal with your daughter, you could not inform her of Ms. Marjorie A. Tueche April 13, 1984 Page 3 needs, bids, etc. which are not generally known or available so that she could transmit that information to Mr. Kirsch to enable him to secure the business for Xerox Corporation. You should be aware that these restrictions are cited not to indicate any violations of the Ethics Act in the situation you have described to us, but to serve as a point of reference and a guide for conduct in general. Conclusion: As a public employee, you should avoid conflicts of interest and the appearance of such conflicts by complying with the above discussion. Specifically, you must be careful not to disclose to or discuss with your daughter any confidential information obtained as a result of your public employment in light of the possibility of any benefit to Xerox Corporation. Otherwise, there is no conflict under Section 3(a) of the Ethics Act or application of Section 3(c) with respect to this situation because your daughter is not a minor, a dependent, or a member of your "immediate family." 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp Sincerely, andra S. Ch'istianson General Cou sel