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HomeMy WebLinkAbout82-577 KosmerDear Mr. Kosmer: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 October 6, 1982 ADVICE OF COUNSEL William F. Kosmer, P.E.R.S. 82 -577 1660 Taylor Place Williamsport, PA 17701 RE: Section 3(a), Sanitary Engineer, Bureau of Community and Environmental Control, Outside Employment This responds to your letter of July 23, 1982, in which you requested advice from the State Ethics Commission. Issue: You asked the following questions: 1. May an engineer employed by the Bureau of Community and Environmental Control (CEC) submit permit applications to another Bureau within the Department of Environmental Resources (DER) if he is not involved with a reviewing or inspection process of the facility for which the application would be submitted? 2. May an engineer employed by the CEC submit a permit application in the same line of work which he is involved with, if the facilities' application would not be reviewed or inspected by him as an employee of CEC? Facts: You are currently employed by the Pennsylvania Department of Environmental Resources (DER) in the Bureau of CEC. You hold the position of Sanitary Engineer and you request clarification as to what types of outside employment you may engage in, within the parameters of the State Ethics Act. Discussion: The State Ethics Commission can only address inquiries under Act 170 -1978. It should be noted that employees of the executive agencies within the Commonwealth are also required to conform their conduct to the Governor's Code of Conduct and any questions relating to your duties and obligations under that Code should be addressed to your supervisor, the program manager, or your personnel director within DER. Incidentally, I also emphasize that the State Ethics Act, Section 11, 65 P.S. 411, specifically authorizes any governmental body to adopt requirements to supplement this act, provided that no such requirement shall be in any way less restrictive than the provisions of the Ethics Act. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania William F. Kosmer, P.E.R.S. October 6, 1982 Page 2 With these thoughts in mind we must first conclude that as a Sanitary Engineer within the CEC you are a public employee subject to the Ethics Act and as such, your conduct must conform to the requirements of that Act as well. Your activities must present neither a conflict nor an appearance of a conflict with the public trust. See 65 P.S. 401. The Ethics Act, does not, generally, restrict your ability to seek permits from other governmental entities, including your own or other bureaus. Using your example, the Ethics Act does not specifically prohibit an engineer employed by the CEC from submitting a permit application to another bureau. Even in this activity, of course, your conduct must conform to the Act's admonition that no public employee shall use his public office or any confidential information received therefrom to obtain financial gain other than the compensation provided by law. See Section 3(a) of the Ethics Act, 65 P.S. 403(a). Thus, you may not use your position as a Sanitary Engineer or confidential information received in your public office to secure benefits, favorable review, personal assistance, or specilized treatment for any permit application that you may be privately handling. Likewise, the Ethics Act does not generally restrict your ability to engage in "outside employement such as performing design work for yourself or another client, or submitting a permit application even in the same line of work with which you are involved as an employee of CEC. If, however, in the context of this work it is necessary to submit a permit application to CEC or DER in general, the Ethics Act would require that you could not participate in any manner in the review or approval process associated with that application. Also, as stated above, the employee could not use his public position or confidential information to prepare or secure approval of that application. If the application that you are privately handling is not reviewed or inspected or approved by you as an employee of CEC, your engagement in this private engineering work would not violate the provisions of the Ethics Act or give rise to the appearance of a conflict of interest with the public trust. Conclusion: The Ethics Act does not prohibit a Sanitary Engineer from submitting permit applications to another bureau or his own bureau so long as the restrictions outlined above are met. 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. William F. Kosmer, P.E.R.S. October 6, 1982 Page 3 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp cc: Edward J. Miller, Deputy Secretary Peter S. Duncan, Secretary Sincerely, Sandra S. Christianson General Counsel