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HomeMy WebLinkAbout86-610 PainterMr. Ronald D. Painter R.D. 3, Pine Road Evans City, PA 16033 State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, P.a. 17108 -1470 October 1, 1986 ADVICE OF COUNSEL 86 -610 Re: Contracting Director, County Manpower Agency, Participating County Dear Mr. Painter: _ This responds to your letter of September 2, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the Ethics Act places any prohibition upon an employee of a Tri- County Manpower Agency from privately contracting with a county that participates in the manpower program. Facts: You advise that you are currently employed as the Executive Director of the Tri- County Manpower Administration, hereinafter referred to as the. Administration. The Administration is an agency that was created in order to administer federal funds in relation to the Job Training Partnership Act. The Administration is for the benefit of the Job Partnership Training Program in Butler, Armstrong and Indiana Counties. The program management and allocation of funds is a joint project which has been undertaken between the hoards of commissioners from the aforementioned counties in conjunction with a sixteen memher private industry council that was formed under the Joh Training Partnership Act.- Butler County, pursuant to a consortium agreement, provides the accountir3 services and payroll services for the Administration employees. The Administration employees are paid by Butler County checks and are also enrolled in thP Rutter County Pension Program. You advise, however, that no funds are provided for the Administration's hudget. All employee wages, health benefits, pension funds, and social security payments are provided for by the Administration utilizing the federal funds that are allocated for the Joh Partnership Training Act through the Pennsylvania Department of Labor and Industry. Employees of the Administration are hired by the mutual consent of all three county boards of commissioners and the Private Industry Council. The salary of the Administration employees are also provided through this method. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Ronald D. Painter October 1, 1986 Page 2 You further advise that in 1984, you were a one -third partner in an entity known as Contract and Negotiation Services, hereinafter CNS. You terminated your association as an active member of that partnership on May 9, 1986. Shortly thereafter, however, you signed a professional services consulting contract with CNS for the purpose of providing professional collective bargaining negotiation services. CNS obtained a contract from Butler County to negotiate the county's collective bargaining agreement with their union employees. In this respect, cm will be providing services to management regarding the collective bargaining process. You further advise that the Administration employees are not covered by any collective bargaining agreement and they would not benefit through any collective bargaining agreement entered into by Butler County and the union representing Butler County employees. Wage increases for the Administration employees, as noted above, are provided by joint agreement of the three boards of commissioners and the Private Industry Council and are awarded through the Butler County Salary Board. You have requested the advice of the State Ethics Commission in relation to the above situation within the purview of the State Ethics Act. Discussion: For the purposes of this advice, we will assume that you are a public employee as that term is defined in the State Ethics Act. See, Gaudio, 85 -564, (Director of Private Industry Council held to be a covered employee . As such, your conduct must conform to the requirements of the State Ethics Act. 65 P.S. §401 et. seq. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, no public official may use his position or any confidential information obtained through his public position in order to obtain a financial gain for himself or for a business with which he is associated. Business with which one is associated is defined as follows: Mr. Ronald D. Painter October 1, 1986 Page 3 Section 2. Definitions. "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. 65 P.S. 402. Clearly, as a partner in CNS and as a paid consultant to that entity, you are employed by that company and were associated with that company in accordance with the above provisions of the Act. Thus, you may not use your position as the Administration's executive director in order to obtain a financial gain for that company. Thus, you may not participate in any decision or any matter by the Administration, which is your governmental body, in relation to any contract that may be awarded or any matter that may come before the Administration relating to CNS. In the instant situation, the Administration is not dealing with CNS. CNS is dealing and has contracted with Butler County. You are neither an employee nor an official of Butler County and, therefore, it does not appear as though you could use your public position in order to benefit CNS or provide CNS with confidential information regarding the Butler County situation. You are advised, however, that in your position with the Administration, you are governed, in part, by the Butler County Board of Commissioners. Because of this association, you should not attempt to use your position in order to obtain any information from these commissioners that could inure to the benefit of CNS. Similarly, you should not use your public position to attempt to influence the Butler County commissioners in relation to their dealings with CNS. In addition to the foregoing, the Ethics Act provides as follows: Section 3. Restricted activities. (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family 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 $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). Mr. Ronal d D. Pai nter October 1, 1986 Page 4 Generally, the State Ethics Commission has determined that the above provision of the State Ethics Act would be applicable in any situation where a public employee or a business, as defined in the above Section of the State Ethics Act, would attempt to contract with the official 's governmental body. The above provision, however, would not apply when a contract would be entered into between another governmental body and the public official or his business. See, Bryan, 80 -014; Lynch, 79 -047. In the instant situation, you are associated with the Tri- County Manpower Administration. You are not associated with Butler County. CNS is currently under contract with Butler County and not with the Administration. Because it appears as though the Administration is a separate and distinct entity from Butler, it does not appear as though the provisions of Section 3(c), above, would be applicable. In addition to the foregoing, the Ethics Act provides as follows: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). We make reference to the above provision of the State Ethics Act not to imply that there has or will be any transgression of this particular provision of law, but merely to provide a complete response to your question and to alert you as t9 all of the restricted provisions of the State Ethics Act. Finally, the State Ethics Act allows this Commission to address other areas of possible conflicts of interests. 65 P.S. §403(d). The parameters of the types of activities encompassed, by this particular provision of law, are determiner through a review of the intent and purpose of the State Ethics Act. Generally, the Act was promulgated in order to ensure the public that the financial interests of their officials do not conflict with the public trust. Such a conflict could develop in any situation where the public official attempts to serve one or more interest that are adverse. See, Alfano, 80 -007. Because of your association with CNS and the Administration and because the Administration is, in part, run by Butler County Board of Commissioners, there could be potential situations that develop in the future relating to a potential conflict of interest. While, this Commission can not foresee every potential factual situation which would develop into a conflict situation, you Mr. Ronald D. Painter October 1, 1986 Page 5 are advised that should such question be raised in the future, you may need to seek the further advice of this Commission. Additionally, we must note that our advice, herein, relates only to the provisions of the State Ethics Act. This advice should not be considered to address any other provisions of law such as the County Code or any other federal or state statute or local ordinance that may be involved. Conclusion: Generally, the State Ethics Act presents no per se prohibition upon the activities contemplated in this instant situation. The director of the Tri- County Manpower Administration should be guided by the advice set forth above and should conform his conduct to the requirements of the State Ethics Act when dealing with a county that is also involved in the Tri- County Manpower Administration's operation. If further questions regarding conflicts of interest should develop, you are advised to seek the further advice of this Commission. Finally, this advice addresses only the provisions of the State Ethics Act. 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. cc: William M. Hulton, Jr., Esq. Si ncerely, e ntiho al Counsel