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Home My WebLink About91-511 BoyerSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 Mr. Samuel J. Boyer Pennsylvania Turnpike Commission P.O. Box 8531 Harrisburg, PA 17105 Dear Mr. Boyer: ADVICE OF COUNSEL January 30, 1991 91 -511 Re: Conflict, Public Employee, Deputy Executive Director of Information Services, Pennsylvania Turnpike Commission, Immediate Family, Contracting Company, Son -In -Law. This responds to your letter of December 27, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon you as Deputy Executive Director of Information Services for the Pennsylvania Turnpike Commission, or upon your son -in -law, with regard to your son -in- law's employment as a programer for Computer Aid, Inc., a consulting firm with which the Commission contracts and from which the Commission may solicit services in the future. Facts: You are a Deputy Executive Director of Information Services for the Pennsylvania Turnpike Commission, having been hired by the Commission in May, 1989. You are responsible for all data processing and communications for the Commission. Your daughter is an independent adult. Her husband, your son -in -law, is employed as a programmer with the consulting firm of Computer Aid, Inc. In your position as Deputy Executive Director of Information Services for the Pennsylvania Turnpike Commission, you participated as a member of the "Technical Evaluation Committee" which recommended your son -in -law's employer, Computer Aid, Inc., for an Open End Systems and Programming contract for supplying the Commission with systems design and programming activities. You indicate that the Commission may solicit such services in the future from Computer Aid, Inc. You inquire as to what actions should be taken with regard to your past involvement in November, 1990 in selecting Computer Aid, Inc. for the contract; what restrictions are imposed upon you with regard to future dealings with Computer Aid, Inc.; and finally, what restrictions are imposed upon your son -in -law regarding his employer's projects with the Commission. Mr. Samuel J. Boyer Page 2 Discussion: As a Deputy Executive Director of Information Services for the Pennsylvania Turnpike Commission, you are a public official 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 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 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. "Immediate family." A parent, spouse, child, brother or sister. Mr. Samuel J. Boyer Page 3 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 and no public official /employee shall solicit or accept anything 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. As for your specific inquiry regarding your past involvement in November, 1990, in recommending the selection of Computer Aid, Inc. for the Open End Systems and Programming Contract, that particular question cannot be addressed because it is past action and therefore beyond the scope of an advisory. Your remaining inquiries may be addressed to the extent that they regard future conduct. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since you and your son -in -law are not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not place any restrictions upon your future dealings with Computer Aid, Inc., based upon the express assumption that neither you, your daughter, nor any other immediate family member has an interest in Computer Aid, Inc. The Commission has reached a similar conclusion in Baker, Opinion 89 -016. The Commission determined that a borough mayor could participate on a police contract negotiation committee although his granddaughter was married to a borough policeman, because neither the granddaughter nor the grandson -in -law fit within the definition of "immediate family." With respect to your son -in -law, the Ethics Law would not present restrictions upon your son -in -law with respect to a conflict of interest because he is not a public employee and therefore is not within the jurisdiction of Section 3(a) of the Ethics Law. He would be subject to Sections 3(b) and (c) which do not appear to be at issue under the facts as you have presented them. Lastly, 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. Conclusion: As Deputy Executive Director of Information Services for the Pennsylvania Turnpike Commission, you are a public employee subject to the provisions of the Ethics Law. Your Mr. Samuel J. Boyer Page 4 such. inquiry as to what actions should be taken with regard to your past involvement in November, 1990 in the contract selection of your son -in -law's employer, Computer Aid, Inc., cannot be addressed because it is past conduct and therefore beyond the scope of an advisory. Section 3(a) of the Ethics Law would not present any restrictions upon your future dealings with Computer Aid, Inc. on the basis of your son -in -law's employment with that consulting firm, because your son -in -law is not a member of your immediate family as that term is defined under the Ethics Law. However, this advice is based on the express assumption that neither you, your daughter, nor any other immediate family member has an interest in Computer Aid, Inc. The Ethics Law would not present any restrictions upon your son -in -law with respect to a conflict of interest because he is not a public employee and he is therefore not within the jurisdiction of Section 3(a) the Ethics Law. He would be subject to Sections 3(b) and (c) which do not appear to be at issue under the facts as you have presented them. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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. Sincerely, Vincent J\., Dopko, Chief Counsel