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HomeMy WebLinkAbout87-539 ConradBruce Conrad R.D. #6, Box 245A Leighton, PA 18235 -8811 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 3, 1987 ADVICE OF COUNSEL 87 - 539 Re: Simultaneous Service, County Employee, Consultant to Authority in Another County Dear Mr. Conrad: This responds to your letter of March 25, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition upon your simultaneous service as a county employee and a consultant to an authority in another county. Facts: You are currently employed by Carbon County as the director of planning and development. In this position you are directly responsible to the Carbon County Commissioners on a policy level in relation to the county's land use. In this respect, you are responsible for planning and land use, and you oversee a professional staff of 8 individuals for the Carbon County Commissioners. Your department also has the responsibility for the Carbon County Planning Commission, the Redevelopment Authority of the County, the Solid Waste Authority of the County, and the Carbon County Economic Development Corporation. The Department of Planning and Development is responsible for all physical development, planning and regulation under the County Commissioners and is further responsible for the implementation of most physical development activities that the county carries out. You also serve as a representative of the County Commissioners on the Carbon County Telecommunication Commission; the Carbon County Comprehensive Child Development Program; the Economic Development Council of North Eastern Pennsylvania; the Railroad Commission; and the Gnaden Huetten Hospital Board of Directors. You advised that you have recently been asked to consider a position as a consultant to the Schuylkill County Rail Transportation Authority, hereinafter the Authority. The Authority is undertaking a project to acquire and construct a shortline Railroad project located in Schuylkill, Luzerne, and Carbon Counties that will serve industries and industrial parks in all three counties. The project is primarily located in Schuylkill County. The Authority project will connect to, but be seperate from the Panther Valley Railroad which is wholly owned by Carbon County. Both shortline railroad systems will be operated by private railroad companies in which you have no interest. Bruce Conrad April 3, 1987 Page 2 You further advise that there in no corporate connection between the Carbon County Railroad Commission which operates Carbon County's Railroad property and the Authority. You have served, from time to time, as an unpaid advisor to the Authority. You have been asked to actively manage the development of the Shortl i ne Project for a period of three years for the Authority. The project will be funded with state and local monies and involves the acquisition of two currently abandoned railroad line segments. The project will also involve the construction of a connection to Carbon County's Panther Valley Railroad. You have requested the advice of the State Ethics Commission in relation to whether the State Ethics Act presents any prohibition upon your contemplated simultaneous service as outlined above. Discussion: As the County Director of Planning and Development, you are clearly a public employee as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the State Ethics Act. Reed, 85 -517. Initially, it should be noted that the State Ethics Commission is only authorized to address you question within the parameters of the State Ethics Act. This Commission will not address the issued presented under any other code of conduct or statutory provisions. While the Ethics Act present no per se or absolute prohibition upon a county employee serving as a consultant to a governmental authority in another county, the Ethics Act does provide 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, this Commission has on a number of occassions, determined that no public official may participate or otherwise be involved in a matter in his official position that relates to his private, financial interests. Sowers, 80 -050. Similarly, the above provision of law, would prohibit an official from using any confidential information obtained in his public position to benefit his private financial interest. Bruce Conrad April 3, 1987 Page 3 In the instant situation, it is clear that you will not be working for any entity in Carbon County. Your new consultant position will be with the Schuylkill County Rail Transportion Authority, which is a seperate and independent entity from any governmental body in Carbon County. See Dice, 85 -021. In this respect, it is clear that you are not in a position with Carbon County that would appear to have direct respons'bilities for your position with the Authority. In addition to the foregoing, however, the State Ethics Act authorizes the Commission to address other areas of possible conflict of interest. 65 P.S. §403(d). The parameters of the activities covered by this particular provision of law, are defined through a review of the scope and intent of the State Ethics Act. Generally, the Act was promulgated in order to ensure the public that the financial interests of their officials and employees do not conflict with the public trust. 65 P.S. §401. Generally, a conflict of interest develops when a public official attempts to serve one or more interests that are adverse. See Domolakes, 85 -010. In the instant situation, while it is not explicitly clear as to what relationship your position in Carbon County will have to the project that is being performed by the Authority, you are advised that you may not participate to any extent as an offical of Carbon County in a matter that relates to your position with the Schuylkill County Authority. In this respect, we note that Schuylkill County Authority is attempting to construct a shortline railroad project. In part, this project will enter into Carbon County. The project will also connect to a shortline railroad which is wholly owned by Carbon County. If in your position, as director of planning and development for Carbon County, you are required to take any action in relation to this particular construction project, such as making recommendations to the County Board of Commissioners as to its advisability, or the location of the route that such project will take, you are advised that you must abstain from participation therein. Your abstention must be publicly noted and appropriately recorded in either the minutes of the County Commissioners meetings or in appropriate county files. While this Commission cannot invision every potential conflict that may develop, you are advised that in the event you are called upon as a county employee to participate in any matter that relates to work that you are performing for another entity or governmental body you must either abstain from participating therein or seek the further advice of this Commission. See Welz, 86 -001. Conclusion: As a county director of planning and development, you are a public official as that term is defined in the State Ethics Act. While the State Ethics Act would present no absolute prohibition upon your simultaneous service as a county employee and as a consultant in another county to an authority, as a public employee you must conform your conduct to the requirements of the State Ethics Act. As such, you may not participate in any matter in your position of public employment that relates to work you may be performing for another entity or governmental body. Your abstention in such matters must be publicly noted and recorded. Bruce Conrad April 3, 1987 Page 4 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. S ohn J. on no Actin General Counsel