Loading...
HomeMy WebLinkAbout91-521 MettlachMr. Fred J. Mettlach Center for Independent Living of Southcentral Pennsylvania Wolf Office Building Mezzanine Level 1501 Eleventh Avenue Altoona, PA 16601 Dear Mr. Mettlach: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1991 91 -521 Re: Conflict, Public Official /Employee, Private Employment or Business, Candidate for County Commissioner and Executive Director of Center for Independent Living. This responds to your letter of January 30, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether a candidate for county commissioner 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: As the executive director for the Center for Independent Living of Southcentral Pennsylvania, you seek advice from the State Ethics Commission regarding the propriety of your prospective candidacy for county commissioner of Bedford County while maintaining your present private employment. The Center for Independent Living (CIL) is a private non - profit organization created by the Rehabilitation Act of 1973 as amended under Title VII Part B. The Center receives governmental funding. The Department of Labor and Industry, Office of Vocational Rehabilitation applied for and received a federal grant from Rehabilitation Services Administration. The Center has a contract as a private corporation with the Office of Vocational Rehabilitation for providing such services as are set forth in that contract and you have a grant coordinator in the Office of Vocational Rehabilitation Central Office. You are requesting clarification as to any conflict with the Hatch Act or any other statutes, caused by your intended candidacy. You state that there are no provisions in your contract to preclude political Mr. Fred J. Mettlach Page 2 activity except for lobbying. You further state your opinion that the definition of "conflict" as set forth in the Public Official and Employee Ethics Law does not seem pertinent to your situation. You specifically inquire regarding whether you may remain in your present employment position and also be a candidate for public office. Discussion: It is initially noted that the propriety of the proposed conduct may only be 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. The applicability of the Hatch Act is specifically not addressed herein. As the Executive Director for the Center for Independent Living of Southcentral Pennsylvania, you are not a public official or public employee as those terms are defined under the Ethics Law. You are therefore not presently subject to Section 3(a) of the Ethics Law. You are subject to Sections 3(b) and 3(c) which apply to everyone, and Section 4 and Section 5 which set forth requirements for candidates to file Financial Interests Statements. 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 which affects to the same degree a class consisting of the general public or a Mr. Fred J. Mettlach Page 3 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. As the Executive Director for the Center for Independent Living of Southcentral Pennsylvania, you are not presently a public official or public employee so as to be governed under Section 3(a) of the Ethics Law. Thus, the Ethics Law would not prohibit or restrict you from pursuing your intended candidacy. As a candidate, however, you would be required to comply with Sections 4 and 5 with regard to filing your Statement of Financial Interests. Furthermore, as indicated above, you would be subject to Sections 3(b) and (c) of the Ethics Law, whether or not you become a public official or public employee. Implicit in your inquiry is the further question of whether, if elected, you may continue to maintain your private employment position. Mr. Fred J. Mettlach Page 4 In applying the above provisions of the Ethics Law to that question, 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 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 and publicly announce the nature of your interest, 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 Mr. Fred J. Mettlach Page 5 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 Hatch Act. Conclusion: As the Executive Director for the Center for Independent Living of Southcentral Pennsylvania, you are not presently a public official or public employee and therefore are not presently subject to Section 3(a) of the Ethics Law. If you are elected to public office and thereby become a public official, you will be subject to 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. 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. such. 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. ncerely, Co Vincent . Dopko, Chief Counsel