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HomeMy WebLinkAbout81-517 Setlak„„, „-- - STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 March 2, 1981 ADVICE OF COUNSEL Irene A. Setlak 6141 Pine Knoll Drive Harrisburg, PA 17111 RE: Public Employment, Contracting Dear Mrs. Setlak: 81 -517 This responds to your communication of February 27, 1981. Issue: In your communication, you requested an opinion as to whether the Ethics Act posed any problems, restrictions, or requirements in relation to your proposed contract for hand- writing analysis and services with the Commonwealth of Pennsyl- vania, Bureau of Labor Relations. Facts: You currently serve as a Claims Settlement Agent for the Pennsylvania Department of Welfare. Your duties consist of handling, reimbursements relating to the Commonwealth's jud ments and encumberances. This work involves examination and comparison of signatures to determine their authenticity. In addition to your employment with the Department of Public Welfare, you have a business which has engaged in the . private practice of handwriting consulting analysis for some years. Work for this business is done on weekends, after working hours, and on scheduled vacation time. Because of your expertise as a handwriting anaylst, you were recently invited to do work for the Commonwealth of Pennsylania, Bureau of Labor Relations and to provide services as a consultant in handwriting analysis. 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, as to the execution of a contract between you and the Bureau of Labor Relations to provide the services in question. Irene A. Setlak March 2, 1981 Page 2 The requisites of Section 3(c) of the Ethics Act should be addressed. Specifically, Section 3(c) of the Ethics Act precludes a 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 restrictions 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 your case, the govern- mental body with which you are associated would be the Pennsylvania Department of Public Welfare. If you were to enter into a contract with the Department of Public Welfare, the governmental body with which you are associated, such a contract would be permissible only if awarded through an open and public process. However, the contract between you and the Bureau of Labor Relations, would not be subject to the open and public require- ments of Section 3(c) since, the Bureau is not the governmental body with which you are associated. Finally, however, you should be advised that you should not use confidential information gained in your public employ- ment to obtain financial gain, including other employment, for yourself, a member of your immediate family or a business with which you are associated. There is no indication that the contract with the Bureau of Labor Relations was secured through the use of any such confidential information. This statement is merely included to indicate the presence of this requirement in the Ethics Act and its application to the use of such confi- dential information, in general. Conclusion: The Ethics Act does not preclude you 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 yourself, your immediate family, or a business with which you are associated. The requirements of Section 3(c) of the Ethics Act would apply to any contract between you or your business and the "governmental body" with which you are associated, the Depart- ment of Public Welfare. These requirements do not apply, as such, to the contract proposed between you and e Bureau of Labor Relations. Such a contract, even under the facts presented, is not prohibited under the Ethics Act. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commis- sion, 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. Irene A. Setlak March 2, 1981 Page 3 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 ' S. Christianson General Counsel