HomeMy WebLinkAbout83-500 VolkMr. David R: Volk
Bureau of Solid Waste Management
851 Kossman Building
100 Forbes Avenue
Pittsburgh, PA 15222 -1376
RE: Dual Employment; Contracting
Dear Mr. Volk:
MWiv Addrsss:
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
January 7, 1983
ADVICE OF COUNSEL
83 - 500
This responds to your letter of September 20, 1982, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether or not you, as a Solid Waste Specialist for the
Department of Environmental Resources (DER), would be able to enter into
private consulting and research work in the areas of survival and energy
resources without encountering a conflict or the appearance of a conflict of
interst with your position at DER.
Facts: You are forming a private consulting and research firm tentatively
known as Pittsburgh Biophysical Research Institute (PBRI) whose purpose is to
perform original research in the areas of residential insulation, solar power,
survival clothing, and survival structures in artic environments. You are
currently employed with the DER Bureau of Solid Waste Management as a Solid
Waste Specialist and are concerned as to whether a conflict of interest exists
if you engage in both activities concurrently.
Discussion: As a Solid Waste Specialist with DER, you are generally subject
to the requirements of the Ethics Act, 65 P.S. §401 et seq. While the Act
contains some restrictions against contracting with the governmental body with
which you are associated §3(c), the Act does not prohibit a person from
engaging in outside employment on their own time.
Essentially, the Ethics Act precludes any employment which would
constitute a conflict of interest with your public employment. The Ethics
Commission has defined "conflict of interest" as existing where an individual
represents two or more persons whose interests are adverse to each other. See
Alfano, 80 -007. In your situation, it does not appear that the interests of
DER and the PBRI are adverse to one another. Accordingly, serving as a Solid
Waste Specialist concurrently with engaging in such consulting work would not
be a conflict of interest under the Ethics Act per se.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. David R. Volk
January 7, 1982
Page 2
You should, however, be aware of some of the restrictions applicable to
you under the Act. Section 3(a), 65 P.S. 403(a) prohibits any public employee
from using his public employment or confidential information received through
public employment to obtain financial gain for himself or his family or a
business with which he is associated. In addition, Section 3(b), 65 P.S.
403(b) precludes any person from offering a public employee any thing of
value, including a promise of future employment, based on the understanding
that his official actions would be influenced thereby. These restrictions are
cited not to indicate any violations of the Ethics Act in the situation which
you describe, but to serve as a point of reference and guide for conduct in
general.
As mentioned above, Section 3(c), 65 P.S. 403(c), also provides that no
public official, member of his immediate family or any business in which the
person or a member of his immediate family is an officer, director or owner of
greater than 5% of the equity at fair market value may contract with a
governmental body unless the contract, valued at more than $500, has been
awarded through an open and public process. See Howard, 79 -044. Previous
opinions of the Commission have held, however, that the term "governmental
body in Section 3(c) refers to the governmental body with which that public
official was "associated." Bryan, 80 -014 and Lench, 79 -047. Therefore, the
"open and public process" limitation of Section 3 c) applies only if you and
your firm (PBRI) contract with the DER Bureau of Solid Waste Mangement in the
course of your operations.
It must be emphasized that there is no prohibition on your firm's
contracting with the governmental body with which you are associated provided
that any contract valued in excess of $500 is awarded in an open and public
process. In its opinion in Howard, 79 -044, the Commission stated that an open
and public process meets the following criteria:
(1) Prior public notice; and
(2) public disclosure of all proposals considered; and
(3) public disclosure of the award of the contract.
If these standards are complied with, your consulting firm (PBRI) could
even contract with the DER Bureau of Solid Waste Management for a contract in
excess of $500 should the opportunity present itself.
Mr. David R. Volk
January 7, 1982
Page 3
Conclusion: As a public employee, you should avoid conflicts and the
appearance of such conflicts by complying with the requirements of Section .
3(a) and (b) in not using confidential information gained through your public
employment to obtain financial gain and in not accepting any thing of value in
return for favorable official actions.
Under Section 3(c), you or your business may contract with the DER Bureau
of Solid Waste Management if the contract valued at greater than $500 is
awarded through an open and public process, which provides for: -
(1) Prior public notice; and
(2) public disclosure of all proposals considered; and
(3) public disclosure of the award of the contract.
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 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.
CW /rdp
cc: Peter S. Duncan, Secretary
Department of Environmental Resources
Sincerely,
Sandra S. Ch tianson
General Counsel