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HomeMy WebLinkAbout86-512 MullenJoseph K. Mullen Director of Program Development Shippenshurg University of PA Center for Juvenile Justice Training & Research Shippensburg, PA 17257 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 February 5, 1986 ADVICE OF COUNCIL 86 - 512 Re: Public Employee., Private Consultant, Use of Facilities, Reimhursement Dear Mr. Mullen: This responds to your letter of January 7, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether a public employee may utilize the computer services of the office facilities wherein he is headquarted for a private business arrangement, and reimburse the office for such use. Facts: You are currently employed by the Juvenile Court Judges Commission as the Community Relations Director of Program Development for the Juvenile Justice Training and Research Center. That center is located at Shippenshurg University, Shippenshurg, Pennsylvania. The Juvenile Court Judges Commission is a statutorily created Commission administratively within the Governor's Office of General Counsel. 11 P.S. 270 -1. Generally, the Commission is responsible for advising juvenile court judges in all matters pertaining to the proper care and maintenance of delinquent children. For this purpose, the Commission is empowered to conduct studies, compile statistical and other data as may he needed to accomplish this result. In addition to your position with the Commission, you are also self employed as a private consultant. In the private sector you indicate that you work with the State of Kentucky Youth Service System and with the Dade County School System in Miami, Florida. You indicate that you are involved in a research project with these entities. You further indicate that the project in which you are involved will require the use of computer services for data analysis. You indicate that the actual data to he analyzed will be provided by the state of Kentucky. You have acted as a consultant for that state and have developed a program design in relation to Joseph K. Mul len, Di rector February 5, 1426 Page 2 this project. The information provided by the state of Kentucky will be processed through the computer systems of Shippenshurg University and the data will be analyzed through that process. You indicate that after the final computer analysis is completed, you will obtain that analysis and issue a final report to the state of Kentucky. You will be compensated for your final report. You indicate that the computer system and the computer programs that will be utilized in this project are the same programs that are currently used by the Juvenile Justice Training Center for the processing of the Juvenile Court Judges Commission's work. You indicate that you will not receive any compensation in relation to the utilization of Shippensburg computers. In addition to the foregoing, we note that we have reviewed your job description, your position with the Commission. That document indicates that you are generally responsible in a community relations capacity for conducting all public relations programs of the Commission. Your description indicates that you are responsible for planning, organizing and developing annual commission symposium and events as well as for the developing of funding for such events. You are also involved in the planning, organizing and conducting of grant request and fund raising activities for various aspects of the Juvenile Justice System. You have requested the advice of the State Ethics Commission as to whether you, as a private consultant, may personally contract with Shippensburg University to obtain the computer services for this research. You have, in the alternative, asked whether the state of Kentucky could directly contract with Shippensburg University for the utilization of their computer systems. Discussion: For the purposes of this advice, we will assume that you are a public employee within the purview of the State Ethics Act, and therefore, subject to the requirements of the Act. 65 P.S. b401 et. seq. This is especially so in light of your functions that involve the funding and grant application aspects of your position. Generally, the State Ethics Act places nb per se prohibition upon a public employee's involvement in outside employment. The Act does provide as follows: 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). Joseph K. Mullen, Director February 5, 1986 Page 3 Within this provision of law, a public official may not use his public position in order to obtain any financial gain for himself or for a business with which he is associated. A public employee may not use confidential information obtained in his public position for similar purposes. Thus, within the purview of the Ethics Act and previous rulings of this Commission, you may not utilize the offices, facilities, personnel equipment of your public employer in order to advance your private business. See Nelson, 85 -009. Miller, 85 -530. In addition to the foregoing, the State Ethics Commission may also address other areas of possible conflicts of interests. 65 P.S. 403(d). Generally, the financial interest of a public employee may not and should not present a conflict with the public trust. Fritzinger, 80 -008. Generally, this Commission has determined that the parameters of the types of activity encompassed by this provision of law, may be reviewed within the general intent and spirit of the State Ethics Act as set forth in Section 1 of the Act. That Section provides that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. As such, the conduct of public officials should not present a conflict of interest. Rased upon this provision of law, this Commission has previously determined, for example, that a public official may not utilize the facilities of his public office in order to conduct a campaign for another office even though he may reimburse the governmental body for the use of that office. See Cessar, 82 -002. This ruling was based upon the fact that even though the reimbursement would negate the actual receipt of a financial gain, it may be perceived, generally, that the use of his office was for personal purposes. Thus, based upon these provisions of the Ethics Act and prior determinations of the Act, you are advised that you should not directly contract with Shippensburg University for the use of the computer services. Even though you would reimburse the university for such utilization, the use of the equipment, and computer programs, the same facilities that are used in your public employment, may he perceived as a conflict of interest and may also be perceived as an attempt to obtain a financial gain for yourself. We note also, that the Ethics Act would generally not prohibit a public official from contracting with his own governmental body. 65 P.S. 6403. Such contracts, however, if in excess of $500, must he awarded through an open and public process. This provision of law, however, is generally concerned with situations where the governmental body is expending money for certain services or materials and will be reimbursing the public employee or official for the providing of such services. In the instant situation, the university is not seeking or attempting to contract. Rather you are attempting to obtain certain services that you need in aid of your private business. Therefore, Section 3(c) of the Act would not apply in relation to this factual situation. Joseph K. Mullen, Director February 5, 1986 Page 4 The Ethics Act would place no prohibitions, however, on the state of Kentucky independently contracting with Shippensburg University in order to obtain the use of the computer services. It is advised, however, that you should not participate in the university's decision to accept this arrangement or otherwise process the request by the state of Kentucky. The arrangements for the use of the computer facilities, the charges for such utilization, and the payment of the hill for services should be handled directly between the university officials and the officials from the state of Kentucky. We understand that you will be receiving no compensation or reimbursement for the use of these computer systems by the state of Kentucky. Additionally, in order to avoid any perceived conflict of interest, you should disclose to appropriate officials of the university and of the Juvenile Court Justice Judges Commission the facts as outlined in this situation. If you have no involvement in the arrangements for the use of the university's computer systems, then the Ethics Act would present no prohibition upon this contemplated arrangement. Pursuant to the above, we are assuming that during your initial negotiations with the state of Kentucky you did not promise or otherwise commit to the utilization of these facilities. In the event that such has occurred, it would appear as though you, in part, were attempting to obtain a personal financial gain by employing or promi ssing to employ the facilities to which you had access only as a result of your public employment. If in fact this has occurred, we do not believe that it would now be appropriate to have Kentucky use these services to any extent. This is so because you would be obtaining indirectly that which we do not believe you could do otherwise. Finally, we note that the Ethics Commission may only address the question that you have presented within the purview of the State Ethics Act. The Commission is not empowered to offer advice or opinions in relation to other codes of conduct. Therefore, this advice will not address any prohibitions that may arise under provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. Separate advice regarding those provisions of law may be obtained from appropriate officials. Conclusion: The State Ethics Act presents no per se prohibition upon a public employees simultaneous private employment as a consultant. Under the Ethics Act, you should not utilize the facilities of your current employer or of Shippensburg University in order to advance your private interest. As a result, you should not use the facilities of Shippensburg University in aid of your private business even though the use of such facilities would be paid for by you. The Act would present no prohibiiton upon the university's contracting with the state of Kentucky in order to provide that state with computer services for the analysis of data, if such has not been previously promised as part of your personal financial transaction. You should not, however, play any role in the contracting arrangements. Joseph K. Mullen, Director February 5, 1986 Page 5 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 hefore 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. S in c e dt5 hn J. C• ino Gener. ounsel