HomeMy WebLinkAbout90-551 DenicolaSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 24, 1990
Mr. Lawrence J. Denicola
Director
Commonwealth Asbestos Control Office
H -307 Capital East Wing
Harrisburg, PA 17125
Dear Mr. Denicola:
90 -551
Re: Conflict, Public Official /Employee, Asbestos Control Office,
Business Venture, Contracting.
This responds to your letter of April 3, 1990, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether the Public Official and Employee Ethics
Law presents any prohibition or restrictions upon the Director of
the Asbestos Control Office regarding a business venture which
would contract with local governments and school districts that
receive funding in whole or part by state appropriations, grants
or bond issues.
Facts: You are currently the Director of the Commonwealth
Asbestos Control Office and contemplate a business venture,
established as a corporation, which would provide a variety of
technical consulting services: hazardous material and waste
handling practices, radon testing and design, asbestos testing,
design and implementation of recycling programs, industrial
hygiene monitoring, water quality testing and analysis, building
and land inspections for contaminants, environmental engineering
inspections and design, chemical engineering design, computer
software development and marketing, development and marketing of
training courses and other related services. The projected
market for your services would include but not be limited to real
estate brokers and agents, private businesses, individuals,
federal government agencies and neighboring state and local
governments. No contracts with the Commonwealth would be sought
and none would be knowingly accepted as sub - contract work under
contracts with the Commonwealth of Pennsylvania. The financing
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for the corporation would be accomplished through personal funds
as well as corporate loans from lending institutions. An
investment capital may be sought from individuals or private
businesses but no state financial assistance consisting of grants
or state loans would be sought. Sub- contract activities would
not be conducted with individuals or businesses which are
currently under contract with the Commonwealth to provide
Asbestos related services and any individuals or companies doing
business with the corporation must agree not pursue the above
mentioned Commonwealth contracts. The foregoing provisions
would be inserted in any agreements with contractors and any
violations would be reported to the State Ethics Commission. The
corporate business would be conducted outside of assigned state
employment hours except when the individual is on leave status or
during lunch hours to run errands or perform paper work which
would not involve the use of Commonwealth facilities or equipment
or serves such as telephones, computers, supplies, etc. and state
recognized holidays. Finally, Commonwealth contracts would not
be sought by the corporation until one year following the
effective date of your termination of service with the
Commonwealth.
Discussion: As Director for Commonwealth Asbestos Control
Office, you are a public employee as that term is defined under
the Ethics Law, and hence you are subject to the provisions of
that law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as
follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of
the authority of his office or employment or
any confidential information received through
his holding public office or employment for
the private pecuniary benefit of himself, a
member of his immediate family or a business
with which he or a member of his immediate
family is associated. "Conflict" or
"conflict of interest" does not include an
action having a de minimis economic impact or
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which affects to the same degree a class
consisting of the general public or a
subclass consisting of an industry,
occupation or other group which includes the
public official or public employee, a member
or his immediate family or a business with
which he or a member of his immediate family
is associated.
"Authority of office or employment."
The actual power provided by law, the
exercise of which is necessary to the
performance of duties and responsibilities
unique to a particular public office or
position of public employment.
"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 has a
financial interest.
"Contract." An agreement or arrangement
for the acquisition, use or disposal by the
Commonwealth or a political subdivision of
consulting or other services or of supplies,
materials, equipment, land or other personal
or real property. "Contract" shall not mean
an agreement or arrangement between the State
or political subdivision as one party and a
public official or public employee as the
other party, concerning his expense,
reimbursement, salary, wage, retirement or
other benefit, tenure or other matters in
consideration of his current public
employment with the Commonwealth or a
political subdivision.
Section 3(a) of the Ethics Law quoted above restricts a
public official /employee from using the authority of office or
confidential information to obtain a private pecuniary benefit
for himself, member of his immediate family or business with
which he or a member of his immediate family is associated.
In addition, Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee anything of monetary value and no public
official /employee shall solicit or accept any thing of monetary
value based upon the understanding that the vote, official
action, or judgement of the public official /employee would be
influenced thereby. Reference is made to these provisions of the
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law not to imply that there has or will be any transgression
thereof but merely to provide a complete response to the question
presented.
Section 3(f) of the Ethics Law provides:
Section 3. Restricted activities.,
(f) No public official or public
employee or his spouse or child or any
business in which the person or his spouse or
child is associated shall enter into any
contract valued at $500 or more with the
governmental body with which the public
official or public employee is associated or
any subcontract valued at $500 or more with
any person who has been awarded a contract
with the governmental body with which the
public official or public employee is
associated, 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. In such a
case, the public official or public employee
shall not have any supervisory or overall
responsibility for the implementation or
administration of the contract. Any contract
or subcontract made in violation of this
subsection shall be voidable by a court of
competent jurisdiction if the suit is
commenced within 90 days of the making of the
contract or subcontract.
Where contracting is otherwise allowed or where there
appears to be no expressed prohibitions to such contracting, the
above particular provision of law would require that an open and
public process must be used in all situations where a public
official /employee is otherwise appropriately contracting with his
own governmental body in an amount of $500.00 or more. This open
and public process would require:
(1) prior public notice of the employment or
contracting possibility;
(2) sufficient time for a reasonable and prudent
competitor /applicant to be able to prepare and
present an application or proposal;
(3) public disclosure of all applications or proposals
considered and;
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(4) public disclosure of the contract awarded and
offered and accepted.
Section 3(f) of the Ethics Law also requires that the public
official /employee may not have any supervisory or overall
responsibility as to the implementation or administration of the
contract.
In applying the above provisions and definitions of the
Ethics Law to the instant matter, the Ethics Law does not
preclude you from outside business activities. Pancoe, Opinion
89 -011. However, you can not engage in or advance your business
activities during Commonwealth working hours nor can you use
Commonwealth facilities, equipment, personnel, or supplies to
advance your private business interests. Pancoe, supra. In this
regard you have stated that your corporate business activities
would be restricted to hours outside of your assigned state
employment. Since your statement is unclear as to your
performing business activities when you are on either leave
status, lunch hour and state recognized holidays, the above
prohibitions would still be applicable in those instances. Thus,
in those instances you still could not use the Commonwealth
facilities, telephones, equipment, personnel or supplies to
conduct your business activities, that is, such activity must be
done on your own time outside of the use of the Commonwealth
offices and facilities. As to Section 3(f) of the Ethics Law,
the above provisions are referenced for your information only,
since you have indicated that you would not enter into any
contracts with the Commonwealth nor knowingly enter into any sub-
contracts wherein contractors would have contracts with the
Commonwealth of Pennsylvania. You are also cautioned in this
regard because the restrictions of Section 3(f) not only apply to
contracts but to sub - contracts and therefore if you are a party
to such a subcontract, the requirements of Section 3(f) quoted
above must be followed.
Regarding the specific questions you have posed, the Ethics
Law would not restrict your corporation's acceptance of contracts
with local governments and school districts since they are not
your governmental body. Further, the Ethics Law would not
restrict your companies acceptance of contracts with local
governments and school districts if funding was provided by the
state through appropriation, grants or bond issues provided you
have not used the authority of public office or confidential
information as a means in whole or part of obtaining such
pecuniary benefits. It is not suggested that such activities
have or will be undertaken on your part and such is presented to
provide a complete response to your inquiry. As to your last
inquiry concerning any additional restrictions, such have been
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outlined above relative to Sections 3(a), (b), (c) and (f) of the
Ethics Law.
Finally, propriety of the proposed conduct has only been
addressed under the Ethics Law; the applicability of any other
statute, code, ordinance, regulation or other code of conduct
other than the Ethics Law has not been considered in that they do
not involve an interpretation of the Ethics Law. Specifically
not addressed herein is the applicability of the Governor's Code
of Conduct or the State Adverse Interest Act.
Conclusion: As Director for Commonwealth Asbestos Control
Office, you are a public employee subject to the provisions of
the Ethics Law. Section 3(a) of the Ethics Law would not
restrict a business venture you contemplate from providing
technical consulting services to Pennsylvania local governments
and school districts and other non - Commonwealth agencies subject
to the qualifications noted above. The requirements of Section
3(f) of the Ethics Law quoted above regarding contracts and sub-
contracts must be followed to the extent applicable. Lastly, the
propriety of the proposed conduct has only been addressed under
the Ethics Law.
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 in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 2.12.
S cerely,
Vincent ..J Dopko,
Chief Counsel