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HomeMy WebLinkAbout81-584 SciottoSTATE ETHICS COMMISSION - 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 30, 1981 ADVICE OF COUNSEL 81 -584 Charles T. Sciotto Director of Personnel Office of Budget & Administration Room 517, Finance Building Harrisburg, PA 17120 RE: Conflict of Interest, Emergency Management Agency Dear Mr. Sciotto: This responds to your letter of April 27, 1981, in which you, as Director of Personnel, requested an opinion from the Ethics Commission relating to Carl C. Kuehn. Issue: You requested advice as to whether the Ethics Act prohibits an Emergency Management Area Coordinator employed by the Pennsylvania Emergency Management Agency from acquiring a partnership interest in a commercial radio broadcasting station. Facts: You advised us that Carl C. Kuehn is an Emergency Management Area Coordinator (Coordinator) employed by the Pennsylvania Emergency Management Agency_(PEMA) in its western area office. A Coordinator is responsible for coordination of emergency management services within a 20 county area as well as directing emergency operations in that area. Duties of a coordinator include planning and supervising the work of PEMA and reviewing and making field checks of county and local emergency management activities to insure compliance with federal and state law. Carl Kuehn is part of a limited part- nership negotiating the purchase of WEND, a commercial radio station in Ebensburg, Pennsylvania. Kuehn is a general partner entitled to a $10,000 salary as a management consultant and 45% of the profits or losses of the station. Discussion: The Ethics Act, 65 P.S. §401 et. seq. defines a public employee as any individual employed by the Commonwealth responsible for taking or recommending non - ministerial official action with regard to inspecting_or regulating any person or any other activity where official action has a greater than de minimus economic impact on the interests of any person. Id §402. A Coordinator inspects local emergency planning to determine compliance with federal and state law and takes or recommends non - ministerial action. Therefore, the Coordinator is a public employee subject to the Ethics Act. Charles T. Sciotto June 30, 1981 Page 2 The statute does not, howeier, require that public employees refrain from all business ventures. The Coordinator may invest in a radio station providing the conditions set forth in the Act are observed. The Coordinator may not use his public employment or confidential information received through his public employment to obtain financial gain for himself or the radio station. 65 P.S. §403(a). No one may offer the Coordinator anything of value, including a promise of future employment, based on any understanding that his official actions would be influenced thereby. 65 P.S. §403(b). Section 3(c) states that no public employee or any business in which the public employee is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at more than $5,00 with the governmental body with which he is associated unless the contract has been awarded in an open and public manner. 65 P.S. 403(c). An open and public process includes prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. The open and public process should give a reasonable and prudent competitor of the public employee an opportunity to prepare a bid. Howard, 79 -044. Therefore, Mr. Kuehn and the radio station, if he acquires the interest set forth above, must follow these procedures if they seek a contract valued at more than $500 with PEMA. Conclusion: The Coordinator is a public employee and may invest in a radio station. He may not use his public employment or confidential information received through public employment to obtain financial gain for himself or the radio station, should he acquire the interest described. No one may offer the Coordinator anything of value based on any understanding that his official actions as a public employee will be influenced thereby. If the radio station, assuming Mr. Kuehn acquires the described interest, or Mr. Kuehn wants to contract with PEMA in an amount in excess of $500, the contract must be awarded through an open and public process providing for prior_public notice and subsequent public disclosure of all proposals considered and contracts awarded. A reasonable and prudent competitor of the station and /or Coordinator must have an opportunity to prepare a bid on the contract. We assume you will notify Mr. Kuehn of 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. Charles T. Sciotto June 30, 1981 Page 3 This letter is a public re2ord 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. SW /rdp Sincerely, Sandra S. Christianson General Counsel