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HomeMy WebLinkAbout86-506 GoodmanMr. James A. Goodman, Vice Chairman Commonwealth of Pennsylvania Pennsylvania Turnpike Commission Harrisburg, PA 17105 State Ethics Commission 308 Finance Building P. O. Box 11470 Harrisburg, Pa. 17108-1470 January 23, 1986 ADVICE OF COUNSEL Re: Conflict of Interest, Memher, Turnpike Commission, Director, Private Corporation Dear Mr. Goodman: This responds to your letter of December 16, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a memher of the Pennsylvania Turnpike Commission may serve as a memher of the hoard of directors of a private corporation that owns a race track in the•Commonwealth of Pennsylvania. Facts: You are currently serving as the Vice Chairman of the Pennsylvania Turnpike Commission. You indicate that you have recently heen asked to serve as a memher of the hoard of directors of a private corporation that owns the . Pocono Downs Raceway in Wilkes- Rarre, Pennsylvania. Generally, the Pennsylvania Turnpike Commission was created pursuant to an enactment of the Pennsylvania General Assembly. See 36 P.S. 6652(d). The Commission is empowered to construct, operate and maintain a turnpike in the Commonwealth of Pennsylvania. You advise that as a memher of the Turnpike Commission you have no duties or responsibilities and will not he asked to perform any functions that would in any way relate to Pocono Downs Raceway or other raceways in the Commonwealth of Pennsylvnia. These estahlishments are generally regulated by the State Horse Racing Commission and the State Harness Racing Commission pursuant to the Race Horse Industry Reform Act. 4 P.S. 6325.101 et. seq. Discussion: As a member of the Pennsylvania Turnpike Commission you are a puhlic official as that term is defined in the State Ethics Act. See Camiel v. State Ethics Commission, 56 Pa. Commw. 518, 425 A.2d 60, (1981). As such, your conduct must conform to the requirements of the State Ethics Act. fenerally, the State Ethics Act provides as follows: 86 -506 State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. James A. Goodman, Vice Chairman January 23, 1986 Page 2 Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a) . Within the above provisions of law, a public official may not use his position in order to obtain any compensation for himself or for a business with which he is associated. Such an official may not use confidential information obtained in his public position for similar purposes. The State Ethics Act defines a business with which a person is associated as follows: Section 2. fefinitions. "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 holder of stock. 65 P.S. 402. As a member of the hoard of directors, for the private corporation that owns the Pocono flowns Raceway, you would clearly be associated with that business within the purview of the State Ethics Act. As such, you may not use your puhlic position in order to obtain any financial gain for that corporation. In the instant situation, however, there appears to be no potential for such a situation. Pursuant to our reading of the Legislation creating the Pennsylvania Turnpike Commission and the legislation regarding the regulation of raceways in the Commonwealth of Pennsylvania, you, as a member of the Commission, would not be called upon to participate in any matter that relates to the regulations of raceways in the Commonwealth. As such, there would appear to he no potential for the violation of this provision of the Act. The Ethics Commission may also address other areas of possible conflict. 65 P.S. 403(d). The parameters of the types of activities encompassed by this provision of law are generally established by reviewing the intent and scope of the Ethics Act as set forth in Section 1 of the Act. That section provides that the financial interest of a puhlic official should not present a conflict with the puhlic trust. 65 P.S. &401. As such, this Commission, in the past has ruled that such a conflict of interest would develop where the puhlic official serves one or more interest that are adverse. See Alfano, 80 -007. Also, the Act would prohibit, a public official from serving inn positions that appear to he inherently incompatible. See Nelson, 85 -009. In the current situation, there appears to be no inherent incompatibility and you do not appear to he serving interest that are adverse. As noted, the Pennsylvania Turnpike Commission performs no services and has no duties and responsibilities in relation to the regulation of the Pocono flowns Raceway. Mr. James A. Goodman, Vice Chairman January 23, 1986 Page 3 In the event that such a conflict should develop in the future, however, you are advised to seek the further advice of this Commission. Such a conflict could potentially develop if you, as a member of the Commission, were called upon to participate in a matter that, for example, would relate to the establishment of Turnpike facilities that would specifically service the raceway or your corporation. The Ethics Act, however, would place no per se prohibition upon your simultaneous service as a member of the Pennsylvania Turnpike Commission and as a member of the board of directors for this private corporation. We do note, however, that the Race Horse Industry Reform Act does provide for certain prohibitions upon public officers and employees and their activities in relation to their financial interest in reaceways. See 4 P.S. 325.211. This Commission does not have the jurisdiction or authority to issue an opinion or advise you as to the propriety of your activities within this provision of law. We make note of this provision of law, however, so that you may be aware of it and so that you may seek appropriate counsel as you deem necessary. Conclusion: The State Ethics Commission would place no per se prohibition upon a member of the Pennsylvania Turnpike Commission simultaneously serving as a member of a hoard of directors or a private corporation that owns a raceway in the Commonwealth of Pennsylvania. As a public official , this individual may not use his puhlic position in order to obtain any financial gain for that corporation or raceway or otherwise participate in any matter that would conflict with his duties as a public official. 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 he 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. Si jleerel y , John J. •ntino Genera Counsel