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HomeMy WebLinkAbout93-617 PaceDear Mr. Pace: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 5, 1993 93-617 Fred C. Pace, Chairman Commonwealth of Pennsylvania, Board of Claims 707 Transportation and Safety Building Harrisburg, PA 17120 Re: Conflict, Public Official /Employee, Chief Administrative Judge, Board of Claims, Retiree Employed per diem, Former Public Official /Employee, Section 3(g). This responds to your letter of October 14, 1993 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 employment of a Chief Administrative Judge of the Board of Claims who seeks to represent the Board on a per diem basis after retirement. Facts: Currently you are serving as Chairman and Chief Administrative Judge of the Pennsylvania Board of Claims (Board). You will be retiring at the end of October, 1993 after 19 years of service with the Board. You have been asked to enter into a contract with the Board, on a per diem basis, as Chief Legal Panel Member for the three hearing panel districts. You believe that this contractual employment would allow-you to represent the Board and that your experience will be of assistance to the Board in resolving pending claims. Based upon the above, you request an advisory from the State Ethics Commission regarding the applicability of the Ethics Law to your proposed conduct. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(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 Fred C. Pace, Chairman November 5, 1993 Page 2 facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Chairman and Chief Administrative Judge for the Board of Claims, you are a public official /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. 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. 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 Fred C. Pace, Chairman November 5, 1993 Page 3 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. In applying the above provisions of the Ethics Law to the instant matter, 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 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. In addition, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. Further, the Ethics Law prohibits the use of governmental office hours or time, personnel, facilities, supplies or resources to arrange or secure any contract or employment after termination of public service. Thus, while you may seek another position of employment, submit your resume and present qualifications in an interview pursuant thereto, you could not use the authority of your public office or confidential information 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. Turning now to the specific question of your proposed employment on a per diem basis, the Ethics Law would not restrict you, as a retired former Chairman and Chief Administrative Judge, from seeking and accepting employment on a per diem basis. This advice is conditioned upon the express assumption that you will be considered a "public official /employee ", as that term is defined by the Ethics Law, under the employment contract with the Board of Claims. You cannot be an independent contractor or private employee in any manner whatsoever. If the factual circumstances are such that you would not be considered a public official /employee, but instead you would be an independent contractor or private employee upon your retirement, you would become a "former public official /employee" subject to the restrictions of Section 3(g) of the Ethics Law. Section 3(g) of Fred C. Pace, Chairman November 5, 1993 Page 4 the Ethics Act provides that: Section 3. Restricted activities. (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 governmental body with which you would be associated upon termination of public service would be the Pennsylvania Board of Claims. This advisory will not address all the specific restrictions of Section 3(g), however, it is noted that in Confidential Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. 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. Conclusion: As Chairman and Chief Administrative Judge for the Pennsylvania Board of Claims, you are a public official /employee subject to the provisions of the Ethics Law. Subject to the limitations and restrictions noted above, Section 3(a) of the Ethics Law would not prohibit you from serving the Pennsylvania Board of Claims on a per diem basis, after retirement from the Board, provided you still are considered to be a public official/ employee under the employment contract with the Board. If you are an independent contractor or private employee, you would be considered to be a "former public official /employee" subject to the restriction of Section 3(g) of the Ethics Law noted above and the prohibition outlined above as to your self- representation would apply. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as described above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and Fred C. Pace, Chairman November 5, 1993 Page 5 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 S13.2(h). ncerely, Vincent . Dopko Chief Counsel