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HomeMy WebLinkAbout91-581 PawlowskiSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1 610 ADVICE OF COUNSEL September 19, 1991 Mr. Blair V. Pawlowski Pawlowski, Tulowitzki, and Homady P.O. Box 658 Ebensburg, PA 15931 -0658 Re: Conflict; Public Officials /Employees; MH /MR Administrator; Sheriff; Administrative Assistant 1; Drug and Alcohol Specialist; County Fiscal Operations Officer 2; Accelerated Rehabilitative Disposition Program; County Officials /Employees Serving in Private Capacity as County - Paid Instructors, Guest Speakers, and Administrators. Dear Attorney Pawlowski: This responds to your letters of August 5, 1991, August 20, 1991 and September 10, 1991 (faxed transmission), in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon public officials /public employees of Cambria County with regard to participating in a private capacity during off -duty hours as instructors, guest speakers, and /or administrators for Cambria County's Accelerated Rehabilitative Disposition ( "A.R.D. ") Program, for which they would be paid by the County from funds paid by the Defendants admitted to the program. Facts: As Solicitor for the Department of Human Services of Cambria County, Pennsylvania, you seek an advisory opinion from the State Ethics Commission on behalf of the following individuals who hold the following stated positions with Cambria County and would provide the designated services to the A.R.D. program: COUNTY NAME POSITION Justin L. Roberts MH /MR Administrator 91 -581 SERVICES TO A.R.D. PROGRAM DUI Instructor and CRN Evaluator Mr. Blair V. Pawlowski September 19, 1991 Page 2 Jay B. Roberts Christine M. Driskel Michele Denk Patrick S. DeRubis Cambria County Sheriff Administrative Assistant 1 Drug & Alcohol Specialist County Fiscal Operations Officer 2 DUI Instructor CRN Evaluator and Clerical CRN Evaluator Fiscal Responsibilities Your inquiry focuses upon the prospective participation of the above individuals as instructors, guest speakers, and /or administrators in the County A.R.D. program. Although you have acknowledged that the above individuals have already performed such services at a rate of $20.00 per hour, you have provided clarification that your request for an advisory opinion only regards prospective conduct because these individuals have again been requested to perform services in relation to the program. The Department of Human Services was authorized by the Cambria County Court to administer certain portions of the Court's program regarding individuals who were convicted of driving under the influence and /or were placed on the A.R.D. program. As part of the sentence, individuals are ordered to appear for a C.R.N. interview and evaluation and are also ordered to appear at a school for driver's education. The course features both instructors and guest speakers, and funds for the administration of the program are paid by the defendants as part of their sentence. By Resolution of the County Commissioners, each individual who helps to administer the program is paid $20.00 per hour provided that, in the event County employees are employed, they perform such services "at such times and /or in such manner so as not to interfere with the regular performance of his county employment." You have submitted a copy of the pertinent Resolution adopted January 1, 1985; a D.W.I. Fee Schedule approved January 1, 1985; and a memorandum dated January 24, 1985 from John F. Henry, Director of the Department of Human Services to Robert McCormick, County Controller and numerous other individuals regarding the D.W.I. Resolution, all of which documents are incorporated herein by reference. Having acknowledged that the individuals on whose behalf you have submitted this inquiry have already performed such services and were paid $20.00 per hour, you state that the Controller has questioned the propriety of such payments to County employees. The Commissioners have taken the position that since the services were not part of the job description of any of the individuals, Mr. Blair V. Pawlowski September 19, 1991 Page 3 since the positions of evaluator and instructor required state training and certification, since all of the work was to be done during off -duty hours, and since no county funds were involved, the practice was permissible. You state that the reasons for the Controller's position are not clear. You note that this matter is now a vital concern to the administration of the Cambria County. Program, and therefore you seek an expedited response to your inquiry. On September 10, 1991, in a telephone conversation with Assistant Counsel for this Commission, you provided additional information. You stated that John F. Henry, who was the Director of the Cambria County Department of Human Services at the time the incorporated Resolution was adopted, is deceased and the new Director is James Kudel. You stated that Justin L. Roberts as the MH /MR Administrator might play a role in selecting individuals for the program assignments, but that the paperwork would most likely be done by Mr. Kudel. Finally, you stated that the same individuals have been working for the A.R.D. program for years. Following that telephone conversation, you submitted a faxed transmission to this Commission dated September 10, 1991 in which you clarified that the new Director of the Department of Human Services, James Kudel, ". . . has made and will continue to make any work assignments pursuant to the Commissioners' resolution." Discussion: parameters. First, County Code County Code This Advice is issued within the following specific this Advice does not address your inquiry under the . However, you are cautioned that Section 1806 of the provides as follows: §1806. County officers not to be interested in contracts No elected or appointed county officer shall be in any wise, either directly or indirectly, personally interested in any contract to which the county is a party, or in the construction of any public work or improvement made or undertaken under the authority of the county commissioners, or receive any reward or gratuity from any person so interested. No such officer shall purchase directly or indirectly any property sold at a tax or municipal claim sale. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, Mr. Blair V. Pawlowski September 19, 1991 Page 4 upon conviction, shall be sentenced to pay a fine not exceeding five hundred dollars ($500) and may, by decree of the court, be removed from office. 16 P.S. 51806. Second, your inquiry may only be addressed with regard to the prospective conduct of the above -named individuals concerning participating as instructors, guest speakers, and /or administrators in the Cambria County A.R.D. program. A reading of Sections 7(10) and (11) of the Ethics Law makes it clear that an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. It is clear that there has been extensive past action which is expressly not considered herein. This Advice is based solely on prospective facts which you have submitted to this Commission. As MH /MR Administrator for Cambria County, Pennsylvania, Justin L. Roberts is a public employee as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. As Sheriff for Cambria County, Jay B. Roberts is a public official as that term is defined under the Ethics Law, and hence, he is also subject to the provisions of the Ethics Law. For purposes of this Advice, it shall be assumed that the remaining three individuals, Christine M. Driskel (Administrative Assistant 1), Michele Denk (Drug & Alcohol Specialist) and Patrick S. DeRubis (County Fiscal Operations Officer 2) are public officials /employees as defined in the Ethics Law. (Should you require conclusive determinations of the statuses of these three individuals as public officials /public employees, you may seek further advice from this Commission, submitting their respective job descriptions, job classifications, and organizational charts.) 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: Mr. Blair V. Pawlowski September 19, 1991 Page 5 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 Mr. Blair V. Pawlowski September 19, 1991 Page 6 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. Section 3(f) of the Ethics Law provides: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an open and public process must be used in all situations where a public official /employee is otherwise appropriately contracting with his own governmental body in an amount of $500.00 or more. This open and public process would require: (1) prior public notice of the employment or contracting possibility; Mr. Blair V. Pawlowski September 19, 1991 Page 7 (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract. The definition of "contract" as set forth in the Ethics Law is not restricted to written contracts, but specifically includes agreements or arrangements by which political subdivisions acquire services. Thus, if the value of such contracts between Cambria County and these individuals is $500.00 or more, Section 3(f) would apply. In applying Section 3(a) of the Ethics Law to the instant matter, we note that Section 3(a) does not prohibit public officials/employees from business activities or employment outside of their public service as public officials /employees; 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. Should any of these individuals use the authority of office or confidential information received through the public position to obtain a private pecuniary benefit for himself, or for an immediate family member or a business with which the individual or an immediate family member is associated, such would constitute a conflict of interest prohibited by Section 3(a) of the Ethics Law. For example, if any of these individuals was to use the authority of his office to assign himself to perform services in the A.R.D. program, such would constitute a conflict of interest. This is a most important point because you indicated in your telephone conversation with Assistant Counsel for this Commission that Justin L. Roberts may have some role in work assignments for this program, although your later faxed transmission represents and assures this Commission that James Kudel, the Director of the Department of Human Services, "has made and will continue to make any work assignments pursuant to the Commissioners' resolution." Thus, subject to the restrictions herein and conditioned upon your express representation that none of these named individuals, Mr. Blair V. Pawlowski September 19, 1991 Page 8 including Justin L. Roberts, has any role whatsoever in selecting participants for the program and /or assigning individuals to particular work assignments in the program, the participation of these individuals in the program would not constitute a conflict of interest. The following general principles also apply to situations where a public official /public employee pursues private employment or business interests outside of his public capacity. 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 a public official's /employee's private employer or business has a matter pending before his governmental body or if he 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 he be removed from that process. In such cases, Section 3(j) of the Ethics Law would require not only that he 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 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. Mr. Blair V. Pawlowski September 19, 1991 Page 9 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 County Code. Conclusion: As MH /MR Administrator for Cambria County, Pennsylvania, Justin L. Roberts is a public employee subject to the provisions of the Ethics Law. As Sheriff for Cambria County, Jay B. Roberts is a public official subject to the provisions of the Ethics Law. For purposes of this Advice, it is assumed that Christine M. Driskel, Michele Denk, and Patrick S. DeRubis are public officials /employees subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude the above named individuals from outside employment /business activity - including participating as instructors, guest speakers, and /or administrators in Cambria County's Accelerated Rehabilitative Disposition ( "A.R.D. ") program - subject to the restrictions and qualifications as noted above. However, this Advice is expressly conditioned upon the representations and assurances which you have made to this Commission that none of these individuals will select participants or make any work assignments with respect to the A.R.D. program. None of these individuals may use the authority of office or any confidential information gained through public position to obtain any business in a private capacity, including but not limited to participation in the A.R.D. program. In the event that the private employment or private business matters of any of these individuals would be pending before their governmental body, then said individuals could not participate in such matters 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 Mr. Blair V. Pawlowski September 19, 1991 Page 10 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. i Sincerely, Vincent J. Dopko Chief Counsel