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HomeMy WebLinkAbout91-541 JamesMr. Richard C. James Fellowship Planning Committee P.O. Box 139 Harrisburg, PA 17108 -0139 Dear Mr. James: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 17, 1991 91 -541 Re: Conflict, Public Official /Employee, Private Employment or Business, Fellowship Planning Committee, Fund - raising. This responds to your letter of March 29, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Fellowship Planning Committee, an independent organization of black Pennsylvania state employees, is prohibited or restricted by the Public Official and Employee Ethics Law from raising funds and placing the funds in the organization's separate account for service - oriented projects, including bringing an international figure from the continent of Africa to a dinner to be hosted by the organization. Facts: As the organizer and Chairman of the Fellowship Planning Committee ( "Committee "), an independent organization of black Pennsylvania state employees, you seek the advice of the State Ethics Commission. The Committee is a volunteer group of individuals who gather, normally once every three months, to interact over dinner and to enjoy each other's company. The Committee is a separate organization from the Commonwealth using its own stationery for mailing and paying for any postage that is used. Its members are state employees who serve on the Committee representing themselves and not their agencies. The Committee has a separate bank account and Federal ID Number. Currently, the Committee has a goal of bringing to a dinner an international figure from the continent of Africa, specifically, his Royal Highness, Eze J. R. Agumanu, III, who resides in Nekede, Owerri, Into State, Nigeria. It is the Committee's opinion that bringing him to the United States would be a beautiful act of fellowship and positive interaction between American and African people. In order to consummate the event, Mr. Richard C. James Page 2 the Committee would like to raise funds and place the money in its account, which is separate from state government. The Committee feels that this is a worthy event which does not violate a code of ethics with regard to the fund - raiser. You will be asking corporations to donate to the Committee for this project and other service- oriented projects. No money will be received by any individual for personal purposes, nor do you expect to make a profit. Any overages would be used toward future dinners. You have enclosed a copy of the letter to be sent by the Committee to corporations soliciting contributions, which letter is incorporated herein by reference. Based upon all of these facts, you seek the advice of this Commission with regard to the propriety of the Committee's plans pursuant to the Ethics Law. Discussion: It is assumed for purposes of this advice that the members of the Fellowship Planning Committee are "public employees" as that term is defined by the Public Official and Employee Ethics Law (Ethics Law) and as such 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 Mr. Richard C. James Page 3 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. 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. Turning to your specific inquiry, the members of the Fellowship Planning Committee could participate in fund- raising on behalf of the Committee for service- oriented projects without Mr. Richard C. James Page 4 transgressing the Ethics Law, as long as the restrictions set forth herein are followed. Any such activities must take place on the employees' own time - not during government working hours. No Commonwealth facilities may be used for purposes of the Committee. It is specifically noted that the letter which you enclosed as an example of your solicitations for corporate contributions specifically requests that contributions be mailed to the committee at 510 Finance Building, Harrisburg, Pennsylvania 17120 -0018. This address is the address of a Commonwealth agency. The use of such a Commonwealth office as a contact point for the Fellowship Planning Committee would be expressly prohibited. It is, however, further noted that the letter directed to this Commission bears a post office box address for the Committee, which would be acceptable. Furthermore, in the event that the Fellowship Planning Committee has a matter pending before governmental body(ies) of its members, or if the members 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 the members be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that such a member abstain from participation but also file a written memorandum to that effect with the person recording the minutes or his 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 /private activity 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. Specifically Mr. Richard C. James Page 5 not addressed herein is the applicability of the internal policies of the departments or agencies where the members of the Committee are employed, or the Governor's Code of Conduct. Conclusion: Assuming that the members of the Fellowship Planning Committee are "public employees" subject to the provisions of the Ethics Law, Section 3(a) of the Ethics Law would not preclude the members of the Fellowship Planning Committee from outside activity on behalf of the Fellowship Planning Committee, including fund - raising for service- oriented projects, subject to the restrictions and qualifications as noted above. In the event that the Fellowship Planning Committee has matters pending before the governmental body(ies) of any member of the Committee, then such member 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. Sincerely, Vincent ' . Dopko, Chief Counsel