Loading...
HomeMy WebLinkAbout88-642 SteinmanDear Ms. Steinman: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 26, 1988 Ms. Connie L. Steinman 449 Scotch Pine Road Dillsburg, PA 17019 Re: Conflict of Interest, Public Employee, Pennsylvania Commission on Crime and Delinquency, Use of Office, Outside Employment 88 -642 This responds to your letter of September 18, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon your acceptance of a position with a firm when you were involved concerning a given project on which the firm bid for funding and from which firm you are seeking employment as project coordinator. Facts: You state that you have been employed as a Criminal Justice Systems Planner II with the Pennsylvania Commission on Crime and Delinquency (PCCD), from November, 1986, and that your primary responsibility is to monitor a variety of projects funded by the federal government and administered by PCCD. You state that in February, 1987, you were asked to develop a concept paper which PCCD could submit to the Drug Policy Council of the Governor in an effort to obtain funds from the Governor's Discretionary Projects fund under the Drug -Free Schools and Communities Act. You then note that you drew up a draft document which was submitted to a Mr. James Strader who is manager of the Narcotics Control Assistance Program at PCCD. Thereafter, you advise that in February, 1988, Mr. Strader informed you that your draft document was developed into a set of funding guidelines for one of several projects to be funded by the Department of Education which was the agency that received all of the said Governor's Discretionary funds. Thereafter you note that all parties who were interested in applying were directed to do so through the Department of Education with Mr. John Meerbach as Ms. Connie L. Steinman October 26, 1988 Page 2 the contact person; part of that process included contacting Mr. Strader for advice or clarification regarding guidelines and instructions. You then note that between February, 1988 and the latter part of July, you participated in a series of meetings involving Mr. Strader, PCCD staff and the PCCD attorney as well as Mr. Meerbach and staff of the Office of Drug and Alcohol Abuse Programs and Ms. Carol Williams of the Governor's Drug Policy Council. After advising that the activities centered upon reviewing concept papers submitted by eight applicant agencies, you note that four proposals were submitted to PCCD and that the other four papers were submitted but two were determined to be inadequate which left two agencies, Project Care and Abraxas Foundation, Inc., which were invited to submit full proposals. After stating that there was a certain amount of confusion during the review period, you advised that you were asked to draft clarification of project tasks and desired outcomes and in that capacity you contacted a Mr. Lee Rush of Project Care and a Ms. Cynthia Haines from Abraxas. You note that you knew Ms. Haines from a previous PCCD project but never heard of either Project Care or Mr. Rush prior to the above referenced review process. You then state that there was a July meeting which accepted PCCD's contracting process for the Department of Education but that you did not participate in said meeting. Thereafter you note that Mr. Strader contacted Ms. Haines and Mr. Rush setting forth certain areas of concern based upon a preliminary review of their respective applications over which you participated with other staff members. You then advise that you absented yourself from participation in the review process at that point in time although you did have some involvement when Mr. Strader was on vacation which was limited to fielding telephone questions from Mr. Rush regarding the request for clarifications. You then state that in February, 1988, you considered different employment and applied for a position with PCCD's sister agency in California. You further state that you had two interviews with VisionQuest, an agency serving juvenile delinquents in Pennsylvania, and that you were offered a position but chose not to accept their offer. You further advised that you have contacted a variety of firms regarding possible consulting positions and have given some consideration to incorporating yourself as a private non- profit agency. You then note that you advised your Supervisor, Mr. Reeser, on August 22, 1988 that you intended to terminate your employment with PCCD effective October 12, 1988 even though you have not obtained another job. You note that you then advised Mr. Reeser that you would prefer remaining in your current position until October 26, 1988. You then state that on August 23, 1988, you telephoned Mr. Rush and after advising him of your intent to resign, you stated that if Project Care were awarded the Department of Education contract, you would like to be considered for the position of project coordinator. Ms. Connie L. Steinman October 26, 1988 Page 3 You state that he expressed surprise in your interest but asked you to submit a resume which you did. You state that you contacted Mr. Rush two weeks later to make certain he received your resume. You note that the review group at that time in an August 31st meeting had recommended that Project Care be awarded the contract but you state that you did not participate in the meeting and learned from Mr. Strader, when asked, that Project Care had been recommended for funding. You state that in your second conversation with Mr. Rush, he advised that he had received your resume and that it looked "pretty good" but that he had not had the opportunity to talk to his supervisor about the "next steps." You state that he further advised that there would probably be an advertisement in the paper and that it seemed clear to you that no decision had been made regarding how the position would be filled. You state that you have had no further contact with Mr. Rush since that telephone conversation. You conclude by requesting advice as to whether you could accept employment with Project Care as the project coordinator if you are offered the position. You request that the Executive Director of the PCCD be supplied with a copy of this advice when issued. Discussion: As a Criminal Justice Systems Planner II in the PCCD, you are a public employee within the definition of that term as set forth in the Ethics Act and the Regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. Section 3(a) of the 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). 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 Ms. Connie L. Steinman October 26, 1988 Page 4 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 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 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). Fritzinoer, 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 (9) Ms. Connie L. Steinman October 26, 1988 Page 5 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 supra. In the instant matter, the question to be addressed under the Ethics Act is whether under Sections 3(a) of the Ethics Act there has been a use of office or confidential information on your part to advance your private interest of obtaining a position of employment with Project Care as project coordinator, the funding for which was received from the Department of Education vis -a -vis funding guidelines for which you drew up the draft document and on which you had a certain amount of participation. In this case, even if you did not know whether Project Care or Abraxas would receive the funding, you did develop the draft of the funding guidelines and were involved in several of the meetings and activities relative to this project and were aware that either Abraxas or Project Care would be receiving the funding. The crucial element in this case is at the time that you contacted Mr. Rush, it was clear that you knew of the potential employment opportunity by and through your public office through your prior work and participation. You have stated in this regard that it was at a subsequent point in time, in a second conversation with Mr. Rush, that he even considered advertising the position. But for the fact that you were involved in this project, both in terms of your draft and participation, you would not be in a position at the point in time you submitted your resume to seek this employment opportunity. Therefore, under these facts, you as a public employee used your status as means of seizing upon an opportunity for potential employment and submitting a resume. It is noted that you were interested in other employment and had given notice that you would be terminating your position with PCCD. However, it is equally true that at the point in time in which you submitted your resume, you could not have done so if you were not in the position of Criminal Justices Systems Planner who developed the draft document and who participated in this matter and had information that either Project Care or Abraxas would receive the funding. Under these circumstances, your Ms. Connie L. Steinman October 26, 1988 Page 6 actions would constitute a conflict of interest under Section 3(a) of the Ethics Act and an appearance of a conflict under Section 3(d) of the Ethics Act. Accordingly, you should not accept the position of project coordinator with Project Care if you are offered that position. Since this advice is a public document, it is not necessary to forward a copy to Mr. Thomas; you may do so, of course, if you so desire. 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 Criminal Justice Systems Planner II in PCCD, you are a public employee subject to the provisions of the State Ethics Act. Under the facts and circumstances as outlined above, you may not accept employment with Project Care as a project coordinator as to a project which received funding from the Department of Education when you participated in developing a draft document for the funding guidelines and when you participated to a certain extent in various activities and meetings concerning applications for that funding. 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. 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. ncerely, intent Dopko, General Counsel