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HomeMy WebLinkAbout80-734 HarmanWilliam Harman RD #4, Box 110 Halifax, PA 17032 Dear Mr. Harman: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 8, 1980 ADVICE OF COUNSEL RE: Ethics Act, Private Employment /Business (1) your ownership of a farm; 80 -734 Issue: The question presented is whether there is any conflict of interest with your position as Chief of the Environmental Resources Section of the Division of Main- tenance and Resource Management in the Bureau of State Parks, Department of Environmental Resources (DER) and the following: (2) your joint ownership with your spouse of a nursery which sells retail and wholesale products; (3) your joint ownership with your spouse of Vegeta- tion Management Corporation (VMC); and (4) your activites as 'distributor of Chevron and Pennwalt Corporation aquatic weed control herbicides through VMC. Facts: In your job with DER you supervise and co- ordinate aquatic weed control, forest, insect and disease control, and vector control for the State Park system. You have responsibility for forest fire prevention and control; fish and wildlife habitation control; development of natural areas; flood revegetation projects; erosion control projects; and land management, in general. William Harman December 8, 1980 Page 2 You own a farm which sells corn and livestock. You share ownership with your wife of a nursery which sells products at retail and wholesale levels. You share owner- ship with you wife in VMC. VMC is a company devoted to providing aquatic weed control services to private land- owners. VMC distributes aquatic weed control herbicides. VMC holds no public contracts. VMC does not distribute products to DER or to the Department of General Services (DGS) which service as the procurement agent for DER. DGS is responsible for advertising, bidding and purchasing of herbicides used by DER. In you job with DER you are responsible for supervising the activities of the aquatic biologist, for example, in the selection of the herbicide to be used on a project or site. Such selections, however, are made from DGS purchasing schedules or lists. DGS has never had occassion to seek your advice as to which herbicides to purchase through bids or otherwise. Discussion: The Commission has ruled that a public employee may generally engage in a business or employment in addition to his public job. Such a business /employment is not per se violation of the Ethics Act. See Howard, 79 -044; Berson, 79 -039 and King, 79 -034. Thus, there is no per se prohibi- tion against your ownership of a farm, nursery or VMC. Several points as to the nursery business and VMC, however, are appropriate. If the nursery or VMC were to seek and /or acquire any contracts with DER, such contracts, if in excess of $500, would have to comply with the'open and public requirements of Section 3(c) of the Ethics Act which provides that: "No public official or public employee or candidate for public office or a member of his immediate family or any business in which the person or a member of the person's immediate family is a- director, officer, owner or holder of stock exceeding 5% of the equity at fair maket value of the business shall enter into any contract valued at $500 or more with a govern- mental body 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. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract." 65 P.S. 403(c) William Harman December 8, 1980 Page 3 In addition, you should not have a role in the bid process if your nursery or VMC were to be entering bids to DER or DGS. Specifically, if you had a vote, opinion, recommendation, etc., to DER or DGS concerning which products to purchase from nurseries or supplied by VMC, for example, you would have to abstain /refrain from offering that opinion or recommendation. See Motto, 80 -021 and Sowers, 80 -050. Nor may you use confidential information gained in your public job to the advantage of your interests in the nursery or VMC. Finally, your Financial Interest Statement should reveal your interest in the nursery or VMC if these inter- ests were the source of income of $500 or more per year. We understand that such income from VMC has not been realized as yet, but be mindful of this requirement should this minimum of $500 be achieved. As to the nursery, if such income exists, please file an amendment to your Financial Statement within the next 30 days to eliminate the defi- ciency in the reporting required. Conclusion: It is not a per se violation of the Ethics Act to hold your position with DER and own a farm, nursery or interest in a corporation which deals with aquatic vegeta- tion control. Any contracts between the entities you own or hold jointly with your spouse and DER and /or DGS must comply with Section 3(c) of the Ethics Act. You should not use your public job or confidential information acquired through that job to serve your interests, for example, in the nursery or VMC. Please amend your Financial Interest Statement within the next 30 days, if necessary, to comply with the Act and this Advice. 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. William Harman December 8, 1980 Page 4 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, cc: Jay Dunn, Personnel DER Dennis L. Farley, Personnel DER Charles Sciotto, OA, Personnel Director Bill Kennedy Sandra S. Chr7stianson General Counsel