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HomeMy WebLinkAbout83-507 DeGarciaMr. 0. Frank DeGarcia Acting Director Department of Public Works Harrisburg, PA 17101 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January 24-, 1983 ADVICE OF COUNSEL RE: Harrisburg Department of Public Works; Collection Agency Dear Mr. DeGarcia: 83 -507 State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania This responds to your letter of December 10, 1982, at which time you, as Acting Director of the Department of Public Works (DPW) of the City of Harrisburg, requested advice from the State Ethics Commission. Issue: You request advice as to whether you, as Acting Director of DPW, may enter into a business arrangement with Central Credit Control (CCC), a bill collection agency it the City of Harrisburg, without jeopardizing your position at DPW and without constituting a conflict or the appearance of a conflict of interest. Facts: You are the Acting Director of DPW and you have recently been offered an opportunity to become a business associate of CCC. CCC is a Harrisburg firm with which the City conducts business. This firm has been responsible for collecting overdue utility bills on a fee basis for the past serveral years. Recently, you have become friendly with the owner of CCC and at times you discuss business matters. During such conversations, you have offered suggestions to improve the marketability of CCC. You have at no time, however, discussed CCC's association with the City of Harrisburg or used your current position to influence contracts. The firm has been associated with the City of Harrisburg for some time, and this business relationship began before your appointment to DPW. You would like to accept the offer to become a business associate of CCC, and you state that you will at no time he directly involved with any current or future City contracts. You are however, concerned about jeopardizing your current DPW position and would like guidance from the Ethics Commission with regard to your plans. Mr. 0. Frank DeGarcia January 24-, 1983 Page 2 Discussion: From the information supplied to the Commission, it is difficult to determine whether you intend to leave your current position with DPW or if you intend to hold both positions concurrently. For this reason, we shall approach your question under each assumption. Assuming that you are planning to hold both positions concurrently, you will, of course, remain within the definition of public employee with regard to your position with DPW. As a public employee, you are subject to the Ethics Act, 65 P.S. 401 et seq. The Act does not, however, absolutely preclude a public employee from engaging in other activities. Sowers, 80 -050. So long as the provisions of the statute are observed, you may serve both the DPW and CCC simultaneously. It must be noted, however, that Section 3(a) of the Act forbids a public employee from using his employment or confidential information gained in the course of his employment to obtain financial gain for himself or a business with which he is associated. 65 P.S. 403(a). You may not use your public position or confidential information received as Acting Director of DPW to obtain financial gain for yourself or the business with which you are associated assuming your association with CCC falls within the definition of the term "business with which he is associated ": "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. Nor may any person offer you or can you accept anything of value, including the promise of future employment, based on any understanding that your official actions with the City would be influenced thereby. 65 P.S. 403(b). As you apparently recognize, you may not, as a City employee, take part in approving or recommending any CCC contracts that may come before you or your office. Should such an occasion arise, you would be required to abstain from any type of action on CCC contracts, referring these decisions to someone not associated with CCC. Also, if you serve as a director, officer, owner, holder of stock exceeding 5% of equity at fair market value in CCC, any contract between the DPW and CCC must be awarded only following an open and public process as set forth in Section 3(c) of the Ethics Act, 65 P.S. 403(c). Assuming that you are planning to leave your position with DPW to work for CCC, you will fall under the classification of a former public employee, and as such, you will need to observe Section 3(e) of the Act: Mr. 0. Frank DeGarcia January 24, 1983 Page 3 (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). The restrictions contained in Section 3(e) relate strictly to that governmental body with which you have been associated (DPW) and preclude representation before that body for the one year period following your termination of service. You are, thus, precluded from representing any individual, including CCC, before the DPW as set forth in Section 3(e) of the Ethics Act. While there are no prohibitions on your working for CCC as a former public employee, Section 3(e) prohibits your negotiating any CCC contracts with the DPW for the one year period after you leave DPW. For that one year period, you may not: 1) make a personal appearances on behalf of CCC before DPW; or 2) attempt to influence DPW; or 3) participate in any manner in any case or matter over which you had supervision, direct involvement or responsibility while with DPW; or 4) lobby DPW; or 5) prepare, sign bid proposals or be listed as worker on proposals submitted to DPW. The proscriptions in No. 5 above do not prevent you from administering a contract between CCC and DPW so long as your signature does not appear anywhere on the proposal. You may, however, make inquiries of DPW similar to general informational inquiries made by members of the general public and utilize the knowledge and experience gained as a public employee, except as noted above. Morris, 80 -039. Conclusion: You are either a public employee or a former public employee of DPW. As a public employee serving both CCC and DPW simultaneously, you must observe the restrictions provided by Section 3 of the Ethics Act as discussed above. Mr. 0. Frank DeGarcia January 24', 1983 Page 4 If you become a former public employee, you would be subject to Section 3(e) of the Ethics Act as discussed above, and such prohibitions would apply for one year following the date of your termination of public service. 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 requester 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 Sincerely, Sandra S. Ch istianson General Counsel