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HomeMy WebLinkAbout81-500 ByrnePatrick Byrne John R. Marsden 533 Shenley Drive Erie, PA STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 January 6, 1981 ADVICE OF COUNSEL RE: Corporation, Public Employment Dear Sirs: 1980. 81 -500 This responds to your communication of September 23, Issue: In your communication you request advice as to the impact of the State Ethics Act on your proposed incorpora- tion of a company which would operate an analytical chemical laboratory to supplement your current incomes as employees of the Commonwealth, Department of Environmental Resources (DER) . Facts: You propose to organize a company to operate an analytical chemical laboratory during your non -work hours. This analytical laboratory will be primarily offering services to Pennsylvania and non - Pennsylvania industries to determine the constituents and composition of raw materials and manufactured products. You assure us that no test will be performed by your proposed laboratory which would be required by DER regulations and /or permit conditions for submission with operating reports required by DER. Your analytical laboratory will do environmental testing outside of the State of Pennsylvania. In addition, the laboratory will analyze private water supplies to assess water quality and treatment methods. All of this business will be conducted totally independent of DER facilities, resources, and personnel. Specifically, you plan to open an on -site laboratory in Erie, Pennsylvania for the purpose of doing organic and inorganic testing and you propose to hire an associate to provide laboratory facilities and test equipment. Byrne, Marsden January 6, 1981 Page 2 You are both currently employed by the Department of Environmental Resources, Bureau of Laboratories. Mr. Patrick Byrne is classified as a Chemist III in the Pittsburgh Laboratory and Mr. John Marsden is classified as a Microbiologist III in the Erie Laboratory. Each of you supervise a laboratory staff including the instruction as to the use of laboratory equipment, the review and checking of abnormal results, and the preparation of non - routine reports on analytical work performed in the laboratories you supervise. Discussion: The Commission has indicatated that, under the Ethics Act, a public employee may serve as a consultant, for example, or in your case, as an owner of a business providing services to the public. See Geist, 79 -011 and Berson, 79- 039. Thus, there is no inherent prohibition against your formation of the proposed corporation to provide analytical laboratory services. However, Section 3(a) of the Ethics Act provides that no public employee may use his office or confidential informa- tion gained through his public employment to obtain financial gain for himself, other than the compensation provided for him by law. Thus, you may not use such confidential informa- tion to your personal financial gain or to the gain of a business with which you are associated, your proposed analytical laboratory. This would include using information to secure contracts, to anticipate regulatory changes to be imposed by DER, or the like. In addition, if your proposed analyical laboratory would seek to have any contracts with the Department of Environmental Resources, the prohibitions of Section 3(c) of the Ethics Act would be applicable. Specifically, Section 3(c) of the Ethics Act provides that no public employee or a business with which he is associated may have a contract valued at $500 or more with the governmental body with which he is associated, unless that contract has been awarded through an open and public process. See Williams, 79 -012; Womer, 79 -026; and Howard, 79 -044. Consequently, should your analytical laboratory seek to secure a contract with the Department of Environmental Resources, such a contract would have to be awarded though an open and public bid process. Of course, on your annual Financial Interest Statement, any income derived from this proposed corporation would be reportable as a source of income if that amounts to $500 or more. Byrne, Marsden January 6, 1981 Page 3 Conclusion: The Ethics Act does not prohibit the formation of the analytical laboratory corporation which you described, even though you are public employees. The cautions and concerns expressed in this advice should be reviewed and followed as they may be applicable. 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 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 Sin erely, ( andra S./Christianson General Counsel