HomeMy WebLinkAbout87-574 ScottMr. Harrison F. Scott, Jr.
P.O. Box 294 87 -574
204 Schuylkill Street
Dauphin, PA 17018
Re: Conflict of Interest, Buyer, Department of General Services, Private Bid
Reporting Service
Dear Mr. Scott:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
May 20, 1987
ADVICE OF COUNSEL
This responds to your letter of May 3, 1987, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether the State Ethics Act presents any prohibitions upon your
private operation of a bid reporting service when you are currently employed
as a buyer for the Pennsylvania Department of General Services.
Facts: You are currently employed by the Department of General Services,
Bureau of Purchases as a Buyer II. The Bureau of Purchases is the central
purchasing section of the Commonwealth. Current state law mandates that all
purchases for commodities be conducted through a competitive bid process. You
indicate that you and your wife are currently contemplating buying and
operating a bid reporting service. This business would furnish public
information concerning bid openings, bid tabulations and related statistical
data to businesses that desire to obtain such information. You indicate that
you would not actively be involved in this busines during normal working
hours. You indicate that your wife or an employee would gather all
appropriate public information.
Generally, in your position with the Department of General Services, you
currently are responsible for performing technical duties regarding the
centralized purchasing of supplies, materials or equipment. Generally, you
arrange for the procurement of requested equipment under methods selected by
the acquiring agency. You are responsible for advising agencies of suitable
alternative if such exists and are responsible for preparing the bid
preparation worksheet designating the content of the bid invitation and
editing the given data on requisitions. You evaluate submitted bids,
contracts and related information. You make awards based upon low bidders
compliance with established standards to include submission of proper security
and adherence to specifications. In making such awards, you are responsible
M�. Harrison F. Scott, Jr.
May 20, 1987
Page 2
for ensuring proper compliance with terms and conditions and ensuring that no
exceptions have been taken or if such are taken, to determine if they are
acceptable. You are also involved in the development of general terms and
conditions for selected commodities. You maintain contacts with vendors and
using agencies in determining quantities and capabilities of vendor products
as well as ensuring agencies request exactly what they should. You also
contact vendors and manufacturers by telephone or mail to solicit bids or gain
information about source of supply. You evaluate bids submitted and make
awards after checking to ensure that property security is supplied. You also
collect statistical and other information to support recommended action such
as propriety or substitute purchases or the removal of irresponsible bidders
from the bidders list. We have reviewed your job description and your
position specification, (0283) and have incorporated those documents herein by
reference.
You have requested the advice of the Ethics Commission regarding whether
there are any prohibitions upon your contemplated activity as set forth
above.
Discussion: As a buyer for the Pennsylvania Department of General Services
you are a public employee as that term is defined in the State Ethics Act and
as such your conduct must conform to the requirements thereof. 65 P.S. §402.
Additionally, it should be noted at the outset, that this Commission will not
address the issue that you have presented under other codes of conduct or
statutes such as the State Adverse Interest Act or the Governor's Code of
Conduct.
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).
The Act further defines busines with which one is associated as follows:
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.
Mr. Harrison F. Scott, Jr.
May 20, 1987
Page 3
Clearly, under the above provision of law, as a public employee you could not
use your current public position or any confidential information obtained
therein, to secure any financial gain for yourself or for the business that
you contemplate operating. Generally, within the above provision of law, for
example, the Commission has previously determined that a public employee could
not conduct such private enterprises during Commonwealth time or utilizing any
Commonwealth facilities or personnel. See, Miller, 85 -530. Additionally, you
could not use your position or your official title in order to advance your
private enterprise. Generally, while there may be a number of other
situations which could implicate the above provision of law, it is difficult
to conclude herein all the potential situations that may be questionable under
the above section of the Act. This advice, therefore, is intended to act as a
general guideline.
In addition to the foregoing, the State Ethics Commission may also
address other areas of conflicts of interest as they arise. 65 P.S. §403(d).
Generally, the financial interests of a public official or public employee may
and should not present a conflict of interest with the public trust.
Fritzinger, 800 -008. While the Ethics Act would present no absolute
prohibition on the activity of a public employee in relation to the
establishment of an outside enterprise of a private nature, the Commission
must review that activity in light of such concerns. In your position with
the Department of General Services, you are in part responsible for developing
bid requests and for analyzing data, meeting with prospective bidders, and
performing a number of other projects related to the request, receipt, and
acceptance of bids for the purchase of various materials. If in fact, the
services that you are rendering in your public employment for the Department
of General Services, is identical to and involves the exact research and
analysis that you will be privately marketing in the form of the bid reporting
service then a question of such conflicts could arise. This is so because in
such a situation it would appear as though you would be utilizing your public
employment to advance or market your bid reporting service. In such a
situation, it may be difficult to separate that service which you are
performing as a public employee from that which you are performing to aid your
private enterprise. See, Simon, 84 -036. For the purpose of this advice,
however, we will assume that the work you are performing with the Department
of General Services is clearly distinguishable from that which will be
necessary in the advancement of your private enterprise. Therefore, in that
situation, there would be no prohibition on the activity that you propose.
In addition to the foregoing, however, and under section 403(d) of the
State Ethics Act additional concerns may be raised if for example, you as a
public employee are required to contact and solicit vendors and transact
business with these vendors while at the same time you are privately
soliciting these same entities or companies in an attempt to market your
program. In this particular situation, a number of conflicts of interest
situations could develop wherein you would be called upon as a public employee
Mr. Harrison F. Scott, Jr.
May 20, 1987
Page 4
to act on matters and deal with people who are you are privately soliciting as
part of this en erprise. As such, you must as a public employee, abstain from
participating in any matter involving an entity or individual with whom you
have a private business association. In this respect, the reason for your
abstention should be disclosed to the Department of General Services. In the
event that you are not called upon, however, to serve these competing
interests, then the State Ethics Act would present no per se or absolute
prohibitions upon your private business enterprises. Once again, we do not
intend this advice to be considered as interpretations of any other statute,
regulation or code of conduct.
Conclusion: While the State Ethics Act would present no per se prohibitions
on the activity as outlined in your letter of request, a number of conflicts
of interest could arise in this situation. You are advised that your conduct
must be 4 n accord with the advice as outlined above and in the event that you
are called upon as a public employee to participate in matters involving
private individuals with whom you have had or are actively transacting
business, then you may not as a public employee participate in such matters.
Your abstention therefrom and the reasons therefor should be disclosed to the
Department. Additionally, a number of other conflicts of interest could arise
in the instant situation and as such, you may need to seek the further advice
of this Commission for guidance under 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.
Slicer
41110" 41-06.11
Con ino
Acting General Counsel