Loading...
HomeMy WebLinkAbout88-624 YelovichJames B. Yelovich, Esquire 166 East Union Street Somerset, PA 15501 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 31, 1988 88 -624 Re: Conflict of Interest, Public Employee, PennDot, Leasing Property to a Firm which Contracts with PennDot Dear Mr. Yelovich: This responds to your letter of August 1, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any restrictions or prohibition upon a construction inspection supervisor in PennDot from leasing a building to a firm which does contract work for PennDot over which work the construction inspection supervisor will perform duties as an inspector. Facts: You state that you represent Mr. Gerald Hall who is a construction inspection supervisor for PennDot. You then note that New Enterprises Stone and Lime, a PennDot contractor, wishes to lease storage space as a garage from Mr. Hall and his wife. You then note that New Enterprise frequently is awarded PennDot contracts in the area and that the firm will be working on' a PennDot contract near Mr. Hall's garage building. After - stating that Mr. Hall will not be the construction supervisor in charge of the contract performed by New Enterprise in the area, you note that he will work on the job as an inspector. Additionally, you advise that Mr. Hall has in the past and will in the future be a construction inspection supervisor on other contracts awarded to New Enterprise as either a contractor or sub - contractor. You state that the proposed lease between Mr. Hall and New Enterprise is for a two year period at a rental rate of $300 a month which will total $7,200. You note that New Enterprise is in immediate need of the garage building and that the current vacancy of the building is not in the best interest of Mr. Hall who would seek James B. Yelovich, Esquire August 31, 1988 Page 2 another tenant if he can not conclude the transaction with New Enterprise. You conclude by requesting an opinion as to whether the contemplated lease arrangement would transgress the State Ethics Act. Discussion: As_a construction inspection supervisor for PennDot, Mr. Hall is a "public employee" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Section 3(a) of the Ethics Act provides: 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. Code §403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would-prohibit a public official /employee from using public office to advance his own. interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (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 James B. Yelovich, Esquire August 31, 1988 Page 3 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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office_ present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion 85 -010. James B. Yelovich, Esquire August 31, 1988 Page 4 In the instant matter, the Ethics Act would not preclude Mr. Hall from entering into a contract with New Enterprise Stone and Lime for the lease of his garage building which is jointly owned by Mr. Hall and his wife. The Ethics Act in and of itself does not preclude a public employee from contracting with an entity which is other than his governmental body. 65 P.S. §403(c). However, should Mr. Hall enter into the lease, then he would be in a business relationship with New Enterprise Stone and Lime and a problem would arise if he, in his position as an inspector with PennDot, would review or inspect work done by that contractor for PennDot. A conflict would arise because Mr. Hall as part of his duties would perform inspection work or supervisory inspection work over a contractor with which he has a private business relationship. Because of that circumstance, Mr. Hall could not under 3(a) or 3(d) of the Ethics Act perform any duties of inspection or supervisory inspection work as to that particular firm, New Enterprise Stone and Lime. The foregoing is consonant with the decision of the State Ethics Commission in Welz, Opinion 86 -001 wherein it was determined that a township supervisor could not participate in matters involving the county when that supervisor had a private business which contracted with the county. See also Bassi, Opinion 86 -007. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a construction inspection supervisor for PennDot, Mr. Hall is a public employee subject to the provisions of the State Ethics Act. Although the Ethics Act would not preclude Mr. Hall from leasing his garage to a firm which does contract work with PennDot, Mr. Hall could not perform inspection or supervisory inspection duties for PennDot as to that particular contractor which he has a private business relationship. Lastly, the propriety of the proposed conduct has only been addressed under the 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. such. This letter is a public record and will be made available as James B. Yelovich, Esquire August 31, 1988 Page 5 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. Sincerely, Vincent J. Dopko, General Counsel