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HomeMy WebLinkAbout81-502 BrownDavid P. Brown, III, Esquire Brody, Brown & Hepburn First Pennsylvania Building 7 East Lancaster Avenue P.O. Box 427 Ardmore, PA 19003 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 January 6, 1981 ADVICE OF COUNSEL RE: Public Employment, Contracting Dear Mr. Brown: 1980. 81 -502 This responds to your communication of December 29, Issue: In your communication, you requested an opinion as to whether the Ethics Act posed any problems, restrictions, or requirements in relation to Mr. Robert J. Phillips, your client, under a proposed contract for handwriting analysis and services with the Commonwealth of Pennsylvania, Depart- ment of Labor and Industry, Office of Employment Security. Facts: Mr. Phillips currently serves as a Claims Settlement Agent for the Pennsylvania Department of Welfare. His duties consist of reviewing possible instances of welfare fraud and making recommendations as to whether criminal prosecution should be undertaken. In addition to his employment with the Department of Public Welfare, Mr. Phillips has engaged in the private practice of handwriting analysis for some years. This work is done on weekends, after working hours, and on scheduled vacation time. Because of his expertise as a handwriting analyst, Mr. Phillips was recently invited to submit a bid to the Commonwealth of Pennsylvania, Office of Employment Security to provide services as a consultant in handwriting analysis in relation to unemployment compensation investigations. David P. Brown, III, Esquire January 6, 1981 Page 2 Mr. Phillips submitted a bid which was accepted. He has been asked to execute a contract, pursuant to this bid and acceptance, to provide services to perform handwriting analysis for the potential review and processing of fraudu- lent claims. Discussion: Initially, it should be noted that the analysis of the restrictions and propriety of such a contract rendered here applies only to the provisions of the Ethics Act. There is no indication, nor could there be any indication, that this advice relates to the recently imposed Governor's Code of Conduct. Under the Ethics Act, the Commission has ruled that the Ethics Act does not contain any prohibition, per se, against a public employee or public official from engaging in a business or employment, in addition to their public office or employment. See Howard, 79 -044; Berson, 79 -039; King, 79 -034. Thus, there is no prohibition, under the Ethics Act, from the execution of a contract between Mr. Phillips and the Office of Employment Security to provide the services in question. The requisites of Section 3(c) of the Ethics Act should be addressed. Specifically, Section 3(c) of the Ethics Act precludes an individual, public employee or public official from entering into a contract with "a governmental body" unless that contract has been let in an open and public process. The Commission has determined that the restric- tions of Section 3(c) of the Ethics Act in relation to contracting apply only to that "governmental body" with which the public employee is associated. See Williams, 79- 012 and Womer, 79 -026. In the case of Mr. Phillips, the governmental body with which he is associated would be the Pennsylvania Department of Public Welfare. If Mr. Phillips were to enter into a contract with the Department of Public Welfare, the governmental body with which he is associated, such a contract would be permissible only if awarded through an open and public process. However, the contract between Mr. Phillips and the Department of Labor and Industry, Office of Employment Security, would not be subject to the open and public requirements of Section 3(c) since, the Office of Employment Security is not the governmental body with which Mr. Phillips is associated. In any event, it would appear that the contract between Mr. Phillips and the office of Employment Security was let in accordance with standard bidding procedure, including request for proposals, applicable to the purchase of personal services. David P. Brown, III, Esquire January 6, 1981 Page 3 Finally, however, Mr. Phillips should be advised that he should not use confidential information gained in his public employment to obtain financial gain, including other employment, for himself, a member of his immediate family or a business with which he is associated. There is no indica- tion that the contract with the Office of Employment Security was secured through the use of any such confidential informa- tion. This statement is merely included to indicate the presence of this requirement in the Ethics Act and its application to the use of such confidential information, in general. Conclusion: The Ethics Act does not preclude Mr. Phillips from entering into the contract proposed in addition to holding other public employment, with the Department of Public Welfare. However, such employment or contracts should not be secured by the use of confidential information and such information should not be used, in general, to obtain financial gain for Mr. Phillips, his immediate family, or a business with which he is associated. The requirements of Section 3(c) of the Ethics Act would apply to any contract between Mr. Phillips and the "governmental body" with which he is associated, the Depart- ment of Public Welfare. These requirements do not apply, as such, to the contract proposed between Mr. Phillips and the Office of Employment Security. Nevertheless, the contract in question appears to have been awarded in the standard manner applicable to the purchase of such services. 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 Siicerely, andra S. ristianson General Counsel