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HomeMy WebLinkAbout93-592 MustoThe Honorable Raphael Musto P.O. Box 786 1011 Oak Street Pittston, PA 18640 -0786 Dear Senator Musto: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 25, 1993 93 -592 Re: Conflict, Public Official /Public Employee, Simultaneous Service, Township Commissioner, Fraud Investigator, Department of Public Welfare, Private Employment or Business, Vehicle - related Paper Transactions This responds to your letter of July 22, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a Township Commissioner from also serving or being employed as a Fraud Investigator for the Department of Public Welfare and whether such individual is prohibited or restricted from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: As a Member of the Senate of Pennsylvania representing the 14th District, you have written on behalf of Frank J. Pizzella of Plains Township, Luzerne County, Pennsylvania. Mr. Pizzella owns and operates a used car dealership along with a messenger service business which transacts vehicle - related paperwork with the Department of Transportation (Penn DOT). Mr. Pizzella is interested in obtaining employment as a Fraud Investigator for the Department of Public Welfare. Further, Mr. Pizzella is interested in the position of Commissioner of Plains Township. Based on the above, you request an advisory from the State Ethics Commission as to any possible conflicts of interest should Mr. Pizzella engage in any or all of the above activities. Discussion: As a Township Commissioner for Plains Township, Mr. Pizzella would become a "public official" as that term is defined August 25, 1993 Page 2 in the Ethics Law and hence he would be subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. Also, as a Fraud Investigator for the Department of Public Welfare, Mr. Pizzella would become a "public employee" as that term is defined in the Ethics Law and he would be subject to the provisions of the Ethics Law in that position as well. 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 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. August 25, 1993 Page 3 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 question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if Mr. Pizzella were to serve both as a public official (Township Commissioner) and as a public employee (Welfare Fraud Investigator). Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a Township Commissioner and a Fraud Investigator. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse. Smith Opinion, 89 -010. In the situation outlined above, Mr. Pizzella would not be serving entities with interests which are inherently adverse to each other. Turning to the question of conflict of interest, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Should a situation arise where the use of authority of public office /employment or confidential information received by holding the above public positions could result in a prohibited private pecuniary benefit, a conflict of interest would arise. In each instance of a conflict of interest, Mr. Pizzella would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed with the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. In applying the provisions of the Ethics Law to the matter of Mr. Pizzella's private business, it is noted 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 August 25, 1993 Page 4 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 Mr. Pizzella's private employer or business has a matter pending before his governmental bodies 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 as noted above, Section 3(j) of the Ethics Law would require not only that Mr. Pizzella 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. 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 Township Code or the Governor's Code of Conduct. August 25, 1993 Page 5 Conclusion: As a Township Commissioner for Plains Township, Mr. Pizzella would be a public official and as Fraud Investigator for the Department of Public Welfare, he would be a public employee. In both positions, he would be subject to the provisions of the Ethics Law. As a public official /employee, Mr. Pizzella may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in both positions, subject to the restrictions, conditions and qualifications set forth above. Further, Section 3(a) would not preclude Mr. Pizzella from outside employment /business activity, again, subject to the restrictions and qualifications noted above. In the event that the employer /business has matters pending before his governmental bodies, then he could not participate in those 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. 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 513.2(h). cerely, Vincent . Dopko Chief Counsel