HomeMy WebLinkAbout93-591 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 20, 1993
93 -591
Re: Conflict, Public Official /Employee, A, Division B, Department
C, New Employment, Program Manager, Program D.
This responds to your letter of July 13, 1993 in which you
requested confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon A of Division B of
Department C with regard to prospective employment as a Program
Manager of Program D.
Facts: You are currently employed by Department C and are A of
Division B. In your present position you serve as the Department's
representative to the various programs established under Act E.
Under this Act, Department C is required to provide personnel,
staff, legal counsel, and office facilities to Board F as required
for the administration and enforcement of programs. In your
current position, you interact on a daily basis with these programs
to assure that the Department's obligations are met.
There is a position available with Program D for program
manager. You would like to apply for this position.
Based upon the above, you have requested a confidential advice
as to whether you may apply for and serve in the position of
Program Manager.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories
are issued to the requestor based upon the facts which the
requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the facts, nor does it
speculate as to facts which have not been submitted. It is the
burden of the requestor to truthfully disclose all of the materials
August 20, 1993
Page 2
facts relevant to the inquiry. 65 P.S. §S407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As A of Division B for Department C, 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.
Sections 3(a) and 3(g) 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.
(g) No former public official or public
employee shall represent a person, with
promised or actual compensation, on any matter
before the governmental body with which he has
been associated for one year after he leaves
that body.
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
August 20, 1993
Page 3
duties and responsibilities unique to a
particular public office or position of public
employment.
"Governmental body." Any department,
authority, commission, committee, council,
board, bureau, division, service, office,
officer, administration, legislative body, or
other establishment in the Executive,
Legislative or Judicial Branch of a State, a
nation, or a political subdivision thereof or
any agency performing a governmental function.
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within
State government or a political subdivision by
which the public official or employee is or
has been employed or to which the public
official or employee is or has been appointed
or elected and subdivisions and offices within
that governmental body.
"Represent." To act on behalf of any
other person in any activity which includes,
but is not limited to, the following:
Personal appearances, negotiations, lobbying
and submitting bid or contract proposals which
are signed by or contain the name of a former
public official or public employee
"Person." A business, governmental body,
individual, corporation, union, association,
firm, partnership, committee, club or other
organization or group of persons.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities.
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procedure
shall be employed. Any public official or
public employee, who in the discharge of his
official duties, would be required to vote on
a matter that would result in a conflict of
interest shall abstain from voting and, prior
August 20, 1993
Page 4
to the vote being taken, publicly announce and
disclose the nature of his interest as a
public record in a written memorandum filed
with the person responsible for recording the
minutes of the meeting at which the vote is
taken, provided that whenever a governing body
would be unable to take any action on a matter
before it because the number of members of the
body required to abstain from voting under the
provisions of this section makes the majority
or other legally required vote of approval
unattainable, then such members shall be
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three - member governing body of a political
subdivision, where one member has abstained
from voting as a result of a conflict of
interest, and the remaining two members of the
governing body have cast opposing votes, the
member who has abstained shall be permitted to
vote to break the tie vote if disclosure is
made as otherwise provided herein.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain and to publicly disclose the
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the
minutes or supervisor.
In the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s) from conflict
under the Ethics Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. See, Mlakar, Advice 91- 523 -S.
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
been 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
circumstances which you have submitted, pursuant to Section 3(a) of
the Ethics Law, a public official /public employee is prohibited
August 20, 1993
Page 5
from using the authority of public office /employment or
confidential information received by holding such a public position
from the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family is associated.
Although Section 3(a) of the Ethics Law would not preclude you
from being considered or hired for the position of Program Manager
for Program D while you are A of Division B it would prohibit you
from using confidential information or the authority of office to
advance your own selection or to eliminate any competitors for that
position.
Thus, while you may apply for that position, submit your
resume and present qualifications in an interview pursuant thereto
while serving as A of Division B you could not use the authority of
your public office as a means in whole or part to promote your
employment or conversely to eliminate any competitors for the
position. Pepper, Opinion No. 87 -008. Subject to the
qualification as noted above, Section 3(a) of the Ethics Law would
not prohibit your prospective employment as Program manager for
Program D. See, Boonin, Opinion No. 90 -003.
In addition to the applicability of Section 3(a) as stated
above, in determining whether the Ethics Law would restrict you in
the position of Program Manager of Program D, Section 3(g) of the
Ethics Law must be reviewed.
Regarding the applicability of Section 3(g) of the Ethics Law,
the question us is whether your resignation as a public official
from Division B contemporaneously with your appointment as Program
Manager of Program D would classify you as a former public
official /employee in light of your resignation.
Before addressing the above question, your governmental body
must be identified. In applying the definition set forth above to
the instant matter, it must be concluded that Department C is your
governmental body. Further, the nature of Board F must be
identified. The Board is created pursuant to Act E. As a creation
of that Act, the Board F is a governmental body, although, pursuant
to the Act, it is separate and independent from the Department C.
Since Department C is your governmental body and since you are
resigning from a position within that body to accept another
appointed position of public employment, does such action
categorize you as a former public official /employee? In this case,
the actions on your part would constitute a transfer from one
position of public service within one governmental body to a new
position of public service within another governmental body.
Therefore, you would not become a former public official /employee
because you would continue under the rubric of public service
subject to the controls of your governmental employer.
August 20, 1993
Page 6
The Advice in this case is limited to these unique
circumstances and certainly would not have application to
situations where a public official /employee would terminate service
with . this governmental body and seek to provide services as an
independent contractor, consultant, or in some capacity, other than
remaining as an employee or an official within' that governmental
body. Boonin, supra and Confidential Opinion, 93 -005.
Accordingly, Section 3(g) of the Ethics Law would not restrict your
appointment as Program Manager with Program D.
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.
Conclusion: As A of Division B for Department C, you are a public
employee subject to the provisions of the Ethics Law. Although
Section 3(a) of the Ethics Law would not preclude you from being
considered or hired for the position of Program Manager for Program
D while serving as A of Division B, Section 3(a) would prohibit you
from using the authority of office or confidential information as
a means of promoting such prospective employment or eliminating
competitors. Further, Section 3(g) of the Ethics Law would not
prohibit you from resigning from one position of public service
within Department C and accepting another position of public
service with another governmental body. 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
August 20, 1993
Page 7
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 writinct and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 513.2(h).
Sincerely,
Vincent J. Dop
Chief Counsel
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