Loading...
HomeMy WebLinkAbout90-610 DeverMr. William P. Dever 90 -610 19 N. Chestnut Street Tesckow, PA 18254 Re: Conflict, Public Official /Employee, Private Employment or Business, PennDot, Transportation Equipment Operator, Private Instructor for Commercial Drivers License Test. Dear Mr. Dever: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 20, 1990 This responds to your letters of October 8, 1990 and November 27, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether a transportation equipment operator in PennDot is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You inquire as to the propriety of engaging in private class room instruction to prepare drivers for the commercial driver's license written test. Upon receiving offers from private contractors and from the Jim Thorpe Area Vocation Technical School District to set -up and instruct the type of class you instruct for PennDot, you would set -up at your convenience the classes for the private contractors and the classes for the Jim Thorpe Area Vocation Technical School at evenings for approximately three hours per session. Because of your position with PennDot as a TEO -B, you realize that you would have to be available for PennDot's snow removal program during winter months and as a consequence all private classes would be cancelled when there was a reasonable possibility of inclement weather. After noting that your district office suggested you seek an advisory as to whether you may be paid for such services, you indicate that you successfully completed the operators instructors course in June of 1986 in Lehighton and also a one week class in preparation for the CDL classroom instruction at Indiana Town Gap. The foregoing training sessions were instructed by E. Karlsaw and were credited to your training record in PennDot's ATRA system. You have eighteen years of employment with PennDot at the Carbon County Maintenance District Mr. William P. Dever Page 2 0520. You see no problem with scheduling these classes since you have in the past and will continue to be an available employee for PennDot. In your most recent job description, which is incorporated herein by reference, you have also been involved with instructing other employees in the safe and proper operating techniques of various pieces of heavy equipment. For the last ten years, since 1986, you have been involved with PennDot's Eastern Pennsylvania Training Facility located at Fort Indiana Town Gap where your duties include field supervision of equipment operator trainees and extensive class room training. The job descriptions for Transportation Equipment Operator 3 and 4 have now been grouped together under the job title Transportation Equipment Operator B. Prior to July 1, 1989, you were titled as a Transportation Equipment Operator 3 with a separate certification as an operator instructor. Regarding any regulatory or certification authority over private contractors or Jim Thorpe Area Vo -Tech, a Mr. Gerald Dotter is the state certified driving skills examiner certified to administer the CDL written examination. Mr. Dotter, who supervises you, has indicated that he has no intention of pursuing either of these jobs outside of PennDot. Lastly you note that you have no personal role in the administration of either the driving skills examination or the written skills examination. Discussion: As Transportation Equipment Operator for PennDot, 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 Mr. William P. Dever Page 3 family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or 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. 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 law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. -- In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry Mr. William P. Dever Page 4 out private business activities. In addition, the public official /employee could not during government working hours, solicit to promote such business activity. Pancoe, supra. In the event that your private employer or business has a -: matter pending before your governmental body or if you as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that you be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. The 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. Conclusion: As Transportation Equipment Operator for PennDot, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. William P. Dever Page 5 Pursuant to Section 7(11), 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 52.12. Vincent J Dopko, Chief Counsel