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HomeMy WebLinkAbout91-534 WoodDear Mr. Wood: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 25, 1991 Mr. Gordon A. Wood 91 -534 F.O. Box 31 Brandy Camp, PA 15822 Re: Conflict, Public Official /Employee, Private Employment or Business, Candidate for Township Supervisor and Equipment Operator with PennDot. This responds to your letter of March 6, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether a candidate for township supervisor, if elected, is prohibited or restricted by the Public Official and Employee Ethics Law from being employed by the Pennsylvania Department of Transportation (PennDot) as an Equipment Operator in addition to public service. Facts: As an Equipment Operator with the Pennsylvania Department of Transportation (PennDot) in Elk County, you seek the advice of the State Ethics Commission regarding your potential candidacy for Horton Township Supervisor, which township is also located in Elk County. You have submitted a copy of your job description which indicates that you are a Transportation Equipment Operator B for PennDot. Your job description is incorporated herein by reference. Discussion: In your capacity as a Transportation Equipment Operator B for PennDot, you are not a public employee as that term is defined under the Ethics Law, and hence you are not presently subject to Section 3(a) of the Ethics Law. As a candidate, you are presently subject to Sections 4 and 5 of the Ethics Law which regard requirements for filing Statements of Financial Interests. If you are elected to the position of Horton Township Supervisor, you would become a public official as that term is defined under the Ethics Law and hence you would be subject to Section 3(a) as well as the other provisions of the Ethics Law. Mr. Gordon A. Wood Page 2 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. "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 Mr. Gordon A. Wood Page 3 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 out private business activities. In addition, the public official /employee could not during government working hours, solicit to promote such business activity. Pancoe, supra. These same restrictions set forth above would apply to you even though, in your case, your "outside business activity or employment" is actually with a governmental body -- PennDot. Furthermore, in the event that PennDot 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 that you publicly announce and also file a written memorandum to that effect with the person recording the minutes. 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; Mr. Gordon A. Wood Page 4 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 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 Second Class Township Code or the Governor's Code of Conduct. Conclusion: As a Transportation Equipment Operator B for PennDot, you are not presently a public employee subject to Section 3(a) of the Ethics Law. As a candidate for Horton Township Supervisor, you are presently subject to the requirements of Sections 4 and 5 of the Ethics Law which regard filing Statements of Financial Interests. If elected as Horton Township supervisor, you would become a public official as that term is defined under the Ethics Law and you would be subject to Section 3(a) as well as the other provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business, including employment as a Transportation Equipment Operator B with PennDot, 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. 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 Mr. Gordon A. Wood Page 5 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Vincent 7. Dopko, Chief Counsel