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HomeMy WebLinkAbout93-566 FlackDear Mr. Flack: 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 26, 1993 Michael W. Flack 93 -566 396 Timber Lane Harrisburg, PA 17112 Re: Conflict, Public Official /Employee, Private Employment or Business, Construction Services Engineer, Civil Engineer Manager, PennDOT, Railroad Engineering Consultant. This responds to your letter of May 14, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether a Construction Services Engineer /Civil Engineer Manager with the Commonwealth of .Pennsylvania, Department of Transportation (PennDOT), Bureau of Construction and Materials, Contract Management Division, is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business in a private capacity in addition to public service. Facts: You currently serve as a Construction Services Engineer with PennDOT, Bureau of Construction and Materials, Contract Management Division. Ypur duties consist of various activities relating to the administration of construction contracts as to the Department's highway construction program. You have submitted a copy of your job description and that document is incorporated herein by reference. A civil engineer manager has the following duties and responsibilities: analyzing and evaluating Department, FHWA and industry regulations relating to construction contract management; developing procedures for construction contract management; maintaining liaison with districts, bureau, Chief Counsel, contractors and other states to ensure adherence to policy for contract management; investigating and resolving contract management problems; assigning work to subordinates and reviewing work; overseeing coordination of training initiatives for bureau and districts; assisting staff in monitoring contractor's schedules; representing the Division Chief at meetings and Michael W. Flack May 26, 1993 Page 2 contractor hearings relative to contract management; performing specific duties assigned by the Division Chief in his absence; preparing agenda and arranging speakers for Department seminars and interdepartmental meetings; reviewing and recommending approval of construction work orders for federal aid construction projects; and performing other duties required to accomplish Division goals. You are also employed as a railroad engineering consultant whereby you work for various privately owned railroads and companies. In this capacity, you perform various engineering and project management activities including estimating costs, developing rehabilitation projects, and reviewing work for compliance with railroad construction specifications. Some of your private clients may receive grants and /or loans from the Commonwealth of Pennsylvania for building or rehabilitating railroad facilities. You state that in your current position at PennDOT, you do not have any involvement with the review or approval of any Commonwealth grants or loans nor do you have any involvement with the review or approval of any work performed for your private clients. Based upon the above, you request an advisory from the State Ethics Commission as to whether you may provide engineering analysis and construction management services to private clients while employed by the Commonwealth of Pennsylvania. Discussion: It is initially noted that your request for advice may only-be addressed with regard to prospective conduct. A reading of Sections 7(10) and 7(11) of the Ethics Law makes it clear that an opinion or 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 or 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. As a Civil Engineer Manager for PennDOT, you are a public employee as that term is 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. Michael W. Flack May 26, 1993 Page 3 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 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. "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 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. 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 Michael W. Flack May 26, 1993 Page 4 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 or promote such business activity. Pancoe, supra. 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. In the event that your private 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. 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Michael W. Flack May 26, 1993 Page 5 Conclusion: As a Civil Engineer Manager for PennDOT, 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. 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 writingrand must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code _513.2(h). cerely, Vincent . Dopko Chief Counsel