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HomeMy WebLinkAbout91-535 StaubMr. Shalom Staub 91 -535 Pennsylvania Heritage Affairs Commission 309 Forum Building Harrisburg, PA 17120 Re: Conflict, Public Official /Employee, Private Employment or Business, Executive Director of Pennsylvania Heritage Affairs Commission and Executive Secretary /Treasurer of America Folklore Society. Dear Mr. Staub: STATE ETHICS COMMISSION • 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 29, 1991 This responds to your letter of March 13, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Executive Director of the Pennsylvania Heritage Affairs Commission 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 of the Pennsylvania Heritage Affairs Commission, you seek the advice of the State Ethics Commission regarding the propriety of your prospective supplemental employment as Executive Secretary /Treasurer of the American Folklore Society in addition to your public service. The Pennsylvania Heritage Affairs Commission is a state agency whose focus is on state programs and policies which relate to Pennsylvania's diverse ethnic communities. The agency is authorized by Executive Order 1988 -6, which Executive Order is incorporated herein by reference. Executive Order 1988 -6 addresses in detail the functions and the composition of the Pennsylvania Heritage Affairs Commission. You characterize the agency's work as addressing four broad topics: conservation of cultural heritage resources, culturally sensitive delivery of health care and human services, multi- cultural education, and inter - ethnic relations. The agency administers a variety of public educational programs in the first Mr. Shalom Staub Page 2 category and is active with technical assistance in the remaining three. You have been recruited to apply for part -time supplementary employment as Executive Secretary /Treasurer of the American Folklore Society. This is a five year appointment by the Society Board, with a stipend. The American Folklore Society is a 101 - year -old scholarly society with an international membership composed of scholars and researchers of folk traditions in contemporary society. You are a member of the American Folklore Society, as are most professionals working in the field. The Society supports a scholarly journal, a bimonthly newsletter and an annual meeting. The Society's main function is for scholarly and professional communication - the exchange of ideas. You state that membership brings no economic benefits or access to authority for public policy. The Executive Secretary /Treasurer is charged with managing the business of the Society's Executive Board, as well as overseeing Society elections and finances, and editing the newsletter and annual report. The Secretary/ Treasurer also serves as a non - voting member of the Executive Board. The Society is not a government agency, nor is it a grant- making body from which the Pennsylvania Heritage Affairs Commission can seek funds, nor would the Society seek funds from a state agency such as the Pennsylvania Heritage Affairs Commission. There is no official interaction between the Heritage Affairs Commission and the American Folklore Society. The Society has no jurisdiction or control over resources in Pennsylvania, and therefore has no cause to be regulated by Commonwealth agencies. You state that your performance as Executive Secretary/ Treasurer of the Society would not adversely affect your duties at the Heritage Affairs Commission, since it is a supplementary employment situation handled during off - hours. You also state that you believe it is significant that for the past ten years - two terms - the Executive Secretary /Treasurer has been a state government employee /public official. From 1986 through 1991, the Executive Secretary /Treasurer was the director of the folk arts program at the Ohio Council on the Arts and subsequently director of the joint program of the Ohio Arts Council and Humanities Council. From 1982 through 1986, the Executive Secretary /Treasurer of the Society was the director of the folk arts Program and senior grants administrator at the Maryland State Council on the Arts. You state that you believe it is clear that employment in positions of responsibility within state government have not been judged as problematic for serving as the Society's Executive Secretary /Treasurer in the past. Discussion: As Executive Director for the Pennsylvania Heritage Affairs Commission, you are a public employee as that term is Mr. Shalom Staub Page 3 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. "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. Mr. Shalom Staub Page 4 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 personnel. In particular, the governmental telephones, postage, g , 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. Furthermore, it is expressly assumed that you have not and will not use the authority of your public employment as Executive Director of the Pennsylvania Heritage Affairs Commission to obtain the position of Executive Secretary /Treasurer with the American Folklore Society. Such a use of the authority of your public employment would transgress Section 3(a) of the Ethics Law, because you would be using the authority of your public employment to obtain a private financial gain. You expressly state that there is no official interaction between the Pennsylvania Heritage Affairs Commission and the American Folklore Society. However, if such were to occur, you would be required to conform to the restrictions of Sections 3(a) and 3(j) of the Ethics Law. Under Section 3(a) of the Ethics Law, 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. Mr. Shalom Staub Page 5 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. Conclusion: As Executive Director for the Pennsylvania Heritage Affairs Commission, 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. This advice is expressly conditioned upon the assumption that you have not and will not use the authority of your public employment to obtain your prospective supplemental private employment. 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. Mr. Shalom Staub Page 6 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. Sincerely, Vincent V. Dopko, Chief Counsel l