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HomeMy WebLinkAbout92-512Dear Mr. Dash: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 1 1470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 21, 1992 Mr. Umakant Dash 92 -512 2890 Sunset Drive Camp Hill, PA 17011 Re: Conflict, Public Official /Employee, Private Employment or Business, PennDOT Employee and Shareholder /Officer of Engineering Corporation Seeking to do Work for Commonwealth. This responds to your letter of December 3, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether a public employee employed by PennDOT 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, where the private enterprise anticipates doing work for the Commonwealth. Facts: Noting that you and your wife, Mrs. Ralyani Dash, are both employees of the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), you seek the advice of the State Ethics Commission regarding an engineering corporation which you and your wife have formed. You state that you wish to do consulting, and have applied for the Disadvantaged Business Enterprise Certification in anticipation of doing work for the Commonwealth. You have submitted a copy of a letter dated November 13, 1991, from Ms. Sharon A. Lenart, DBE Administrative Officer with the Office of Inspector General, advising that both you and your wife should seek advice from this Commission as to any ramification in connection with the Ethics Law. The said letter is incorporated herein by reference. It is noted that the said letter indicates that your wife is President and you are Secretary /Treasurer of "Geo- Environmental Int'l., Inc.," which is assumed, for purposes of this Advice, to be the name of the aforesaid engineering corporation formed by you and your wife. Ms. Lenart's letter further recommends that you and your wife seek an Advice of Counsel from the Office of Chief Counsel in Mr. Umakant Dash January 21, 1992 Page 2 light of the Governor's Code advice regarding the Adverse Based upon all of the Commission. of Conduct, as well as private legal Interest Act. above, you seek the Advice of this Discussion: It is initially noted that this Advice may only address your inquiry under the Ethics Law. This Commission does not have the statutory jurisdiction to interpret the Adverse Interest Act or the Governor's Code of Conduct, and so it is recommended that you follow Ms. Lenart's advice and also seek the advice of the Office of Chief Counsel and of your own legal counsel regarding the applicability of the Governor's Code of Conduct and the Adverse Interest Act. It is also initially noted that you have not provided any information as to what position you and /or your wife hold with PennDOT. A conclusive determination as to your statuses as "public employees" could only be made following review of your respective job descriptions, job classification specifications and organizational charts. However, for purposes of this Advice, it shall be assumed that both you and your wife hold positions with PennDOT- which would place you within the Ethics Law's definition of "public employee" and therefore within the jurisdiction of this Commission. Thus, based upon the above assumption, both you and your wife are deemed, for purposes of this Advice, to be "public employees" as that term is defined under the Ethics Law, and hence you are both 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 Mr. Umakant Dash January 21, 1992 Page 3 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 of 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. "Immediate family." A parent, spouse, child, brother or sister. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. "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 Mr. Umakant Dash January 21, 1992 Page 4 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 official /employee shall solicit or accept anything 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. The question which you have presented is very general and so the response must also necessarily be general. 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. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. This Commission has noted that 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 or promote such business activity. Pancoe, supra. Mr. Umakant Dash January 21, 1992 Page 5 In the event that a public employee's private employer or business has a matter pending before his or her governmental body or if the public employee as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In thoae instances, it will be necessary that the public employee be removed from that process. All of the above restrictions would apply to you and to your wife as public employees. In each instance of a conflict of interest, Section 3(j) of the, Ethics Law would require not only that the public official /employee abstain from participation but also file a written memorandum to that effect with the person recording the minutes or the public employee's supervisor. Thus, you and your wife as public employees must observe the requirements of Section 3(j) in each instance of a conflict of interest. In summary, Section 3(a) of 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. 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 Mr. Umakant Dash January 21, 1992 Page 6 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; (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 cont=act 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. Since you have stated that Geo- Environmental Int'l., Inc., which is by definition a business with which you and your wife are both associated, will seek to do business with the Commonwealth of Pennsylvania, the restrictions of Section 3(f) as set forth above must be observed where you, your wife, and /or Mr. Umakant Dash January 21, 1992 Page 7 Geo- Environmental Int'1., Inc. enters into any contract valued at $500 or more with PennDOT. 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 Adverse Interest Act and /or the Governor's Code of Conduct. Conclusion: For purposes of this Advice, it is assumed that both you and your wife, Mrs. Kalyani Dash, hold positions with the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) which would place you within the definition of the term "public employee" as set forth in the Ethics Law, and that both you and your wife are therefore subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you or your wife 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 PennDOT as your governmental body, then neither you nor your wife could participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. The restrictions of Section 3(f) of the Ethics Law as set forth above must be observed, where applicable. 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 requester 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 Mr. Umakant Dash January 21, 1992 Page 8 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent J. Dopko Chief Counsel