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HomeMy WebLinkAbout91-528 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 11, 1991 91 -528 Re: Conflict, Public Official /Employee, County Senior Planner, Business Related Open House, Contest Prizes. This responds to your letters of January 20, 1991 and February 17, 1991, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon public employees with regard to entering contests and accepting contest prizes generally, and upon you particularly as a County Senior Planner with regard to accepting a contest prize from a business whose product line is of potential use to the agency for which you work, and which contest you entered while attending an open house held by that business for which you received an invitation in your office mail. Facts: You note that you requested this Commission's advice on another matter for which you received a confidential Advice, 91- 507. In the context of that prior request for advice, you submitted various information including your most recent job description, and an organizational chart for your position, which information, job description and organizational chart are incorporated herein by reference. You are a Senior Planner for County A in Office B. An employee in this position: Conducts highly responsible planning work at a supervisory level, supervising both professional and support staff and conducting administrative duties; advises, collects data for, and presents drafted policy documents to the Planning Director and Chief Planner for County A and conducts planning work to implement the objectives and programs of County A; applies for and administers governmental grant assistance programs; works with local municipalities with respect to preparing plans and grant applications; represents County A at meetings of the public and the press with respect to policies and programs of County A; works with other planning agencies including federal and state agencies to coordinate planning; Page 2 prepares and administers the department budget for the Solid Waste Planning Department, as part of the accountability for state grants; conducts field work, and performs numerous other responsibilities as set forth in the incorporated job description. Significantly an employee in your position prepares recommendations on the selection, training, and operation of office microcomputers (word processing, Lotus 1/2/3, and other software programs). During December, you received an invitation in your office mail to attend an open house held by Company C, a business local to you whose product line is of potential use to the agency for which you work. You attended the open house, at which those in attendance were asked to deposit their business card in a box near a display of door prizes. Prize winners were to be notified at a later date. You were notified, at your office, that you won a package of computer software with a retail value of approximately $100. You state that you perceive your involvement with businesses that provide supplies to the agency for which you work to be minor. Office supplies are ordered from a company designated by another office of county government. Capital equipment purchases are generally initiated by the Department head or the assistant after review and approval by the county commissioners. Computer hardware and software purchases are subject to review and approval by another county government agency and the county commissioners. Finally, the agency for which you work prepared a report in 1989 evaluating the office's computer needs for the 1990's. This study was prepared by a staff person other than yourself. You note that in addition to requesting guidance from the State Ethics Commission, you have also contacted the Internal Revenue Service. You state that the Internal Revenue Service has indicated the following: 1. It is up to the person giving the prize /holding the contest to determine whether the prize is being given to the winner as a private individual or as a representative of his /her company. 2. For prizes valued at more than $100, the contest holder must obtain the tax identification number /social security number of the prize winner and include it on the paperwork submitted to the IRS. 3. The IRS holds the winner of the prize liable for taxes. Page 3 You state that in this case, the holder of the contest intended that the prize awarded be given to the individual named and not their employer. You state the holder of the contest did not require a tax identification number because the prize was valued at less than $100. The software prize was a second edition of the software and a third edition has already been released. You seek general guidelines under the Ethics Law regarding entering and accepting prizes from contests. You also specifically inquire: 1. Whether this particular prize can be accepted? 2. If this prize can be accepted, to whom that prize would belong - -you individually, or your employer? You also request general advice on various other factual scenarios: 1. If a local radio station is running a promotion for secretary of the week, offering lunch for two, flowers, and ten dollars worth of office supplies as the prizes, can a secretary of a public agency be entered into the contest and accept the prizes if her name is drawn as a winner? 2. If the secretary wins, do the prizes belong to her or to the agency? 3. Can public employees accept lottery prizes from the state lottery? 4. Can public employees accept prizes from raffles held by national or local organizations? 5. Can public employees accept prize winnings from contests sponsored by local merchants, either individually or in groups? 6. Does the position one holds affect from which contests prizes could be accepted? 7. Whether the response to the question in your situation would change if you were an agency director or an entry level planner? 8. Whether it is any more of a conflict of interest for the Governor to accept a prize from the state lottery than anyone else? Page 4 On all of these matters, you request the advice of this Commission. Discussion: As a Senior Planner for County A in Office B, 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 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. 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 Page 5 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. Section 3(a) of the Ethics Law quoted above specifically provides in part that a public official or public employee may not use the authority of public office or employment to obtain a private pecuniary benefit for himself, his immediate family or a business with which he or a member of his immediate family is associated. Turning to your first specific inquiry, although the computer software prize awarded through your attendance at the open house may be accepted, it would belong to your employer under the Commission's reasoning set forth in Stefanko, Opinion 90 -015. In that case, the Commission held that under Section 3(a) of the Ethics Law, any frequent flyer credits or award certificates received by or due a public official or public employee subject to the provisions of the Ethics Law in connection with official travel, paid for by the government agency by which he is employed, are due to that agency and must be used for official travel only. The Commission held that the utilization for such individual's own personal travel is prohibited since that activity would constitute a private pecuniary benefit obtained through the use of authority of office. Similarly, in this situation, it is clear that but for your public employment, you would not have been in the position to enter this contest and /or win t4is prize. Your attendance at the open house would be considered in aid of the performance of your duties as a public employee, and therefore the requisite elements of the use of "authority of office or employment" would be met. Clearly the prize itself is a pecuniary benefit. Therefore, under Stefanko, supra, the computer software prize may be accepted, but it belongs to your employer. Turning to the numerous other factual scenarios which you have presented, a situation involving a secretary of a public agency would appear to be a third party request for advice on your part. This inquiry cannot be entertained because it is a third party request, but in passing, it may be noted that if this individual were engaged in ministerial duties such that he or she would not fit within the definition of "public employee" set forth in the Ethics Law and the regulations of this Commission, that individual would not be restricted under the Ethics Law with regard to contest prizes anyway. With regard to your remaining inquiries, they may only be addressed from your perspective because a request for advice Page 6 regarding other individuals would be a. third -party request as discussed above. It should also be noted that your inquiries are factually general and therefore the responses set forth herein are general as well. With regard to whether you as a public employee could accept lottery prizes from the state lottery, it would appear that the state lottery is so separate from your public employment as to deem participation in the state lottery as not fitting within the definition of use of "authority of office or employment ". With regard to you as a public employee accepting prizes from raffles held by national or local organizations, the response would depend in large part on the nature of those national or local organizations and any relation to the public employment. The same considerations set forth in Stefanko, supra, as well as those set forth above pertaining to your specific inquiry, would be applied in such situations. Similarly, prize winnings from contests sponsored by local merchants, either individually or in groups, would necessarily be considered on their specific facts. In the specific situation you have presented, Company C would be such a local merchant, according to the facts as you have presented them. In each situation, the elements for a conflict of interest would include establishing: (1) your status as a public official or public employee as defined in the Ethics Law; (2) the use of the authority of your office or employment or any confidential information received through your holding public office or employment, for (3) the private pecuniary benefit of yourself, a member of your immediate family or a business with which you or a member of your immediate family is associated. An individual's particular status would only be pertinent to the extent of determining whether or not the individual fits within the definition of "public official" or "public employee" as set forth in the Ethics Law. Thus, although your question regarding the Governor is a third party request which may not be addressed, it is generally noted that under the Ethics Law, the principles which would be applied to any given individual under Section 3(a) would not differ merely because of that individual's status, nor would , preferential treatment be afforded. You may wish to refer to the laws pertaining to the state lottery regarding specific public officials or public employees who by law may not participate in the state lottery. It must be stressed that to the extent you have posed numerous broad, general factual scenarios, the responses set Page 7 forth above are equally broad and general. Specific requests for advice may be presented to the Commission by authorized individuals who seek advice on specific factual scenarios. 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 Internal Revenue Code. Conclusion: As a Senior Planner for County A in Office B, you are a public employee subject to the provisions of the Ethics Law. The contest prize awarded through your attendance at an open house held by Company C, may be accepted but it belongs to your employer. Your inquiry regarding a secretary of a public agency entering a contest and winning a prize may not be addressed because it is a third party request. In response to your general inquiries, addressed from your perspective only, lottery prizes would be so separate from your public employment as to fall outside of the definition of use of "authority of office or employment ". Individual instances of prizes from raffles held by national or local organizations and /or contests sponsored by local merchants, either individually or in groups must be considered on a case -by -case basis on specific facts. Any authorized person may seek specific advice from this Commission based upon such specific factual scenarios. In each situation, the statutory elements for establishing a conflict of interest would be as set forth above. The particular position held by a public official or public employee is only pertinent under Section 3(a) to the extent that it must be determined whether the individual fits within the definition of "public official" or "public employee" as defined in the Ethics Law. Although your hypothetical inquiry regarding the Governor accepting a prize from the state lottery may not be addressed as a third -party request, it is noted that the particular status held by a public official or public employee does not result in preferential treatment. 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 page 8 Finally, if you disagree with this Advice or if you have an 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 S2.12. Sincerely, Vincent J. Dopko, Chief Counsel