HomeMy WebLinkAbout93-616 HaggertySTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
November 8, 1993
John J. Haggerty
Pocono Psychological & Consultant Services
P.O. Box 287
Mount Pocono, PA 18344
93-616
Re: Conflict, Simultaneous Service, Member of Board of Trustees of
Bloomsburg University and Instructor of Course in Department
of Continuing Education at Bloomsburg University.
Dear Mr. Haggerty:
This responds to your letter of October 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 Member of the Board of
Trustees of Bloomsburg University from also serving or being
employed as an instructor of a course in the Department of
Continuing Education at Bloomsburg University.
Facts: In November, 1992, you were appointed to the Board of
Trustees of Bloomsburg University by Governor Robert P. Casey.
Recently, you and the Department of Continuing Education at
Bloomsburg have been discussing the possibility of conducting a
course in military combat psychology in the Spring of 1994. You
request an advisory from the State Ethics Commission regarding your
ability to receive monetary compensation or in -kind compensation,
such as books, materials, tapes and field trips, for teaching this
course.
Discussion: As a Member of the Board of Trustees of Bloomsburg
University, you are a "public official" as that term is defined in
the Ethics Law and hence you are subject to the provisions of the
Ethics Law. 65 P.S. 5402; 51 Pa. Code 511.1.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
John J. Haggerty
November 8, 1993
Page 2
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined under the Ethics Law:
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
any thing of monetary value and no public official /employee shall
solicit or accept any thing of monetary value based upon the
understanding that the vote, official action, or judgment of the
public official /employee would be influenced thereby.
The stated purpose of the Ethics Law, which is to strengthen
the faith and confidence of people in their public officials and
public employees by assuring the public that the financial
interests of the holders of public office and public employment do
not present a conflict with the public trust, must be observed. It
is clear that the law, and Section 3(a) in particular, was designed
primarily to restrict the activity of a public official or employee
from using the authority of office for private pecuniary benefit.
Public officials and public employees must ensure that their
conduct and their financial interests do not create a conflict of
John J. Haggerty
November 8, 1993
Page 3
interest. A conflict of interest is created, in part, when a
public official or public employee attempts to serve one or more
interests that are adverse.
An adversity of interest exists in this case in that you, as
Trustee, have direct control over the Department, which would have
"control" over you as an instructor. As a Member of the Board of
Trustees, you have influence and control over decisions of the
Board. The Board of Trustees controls and supervises the Continuing
Education Department and takes action regarding salary, conditions
of employment and the like, and acts upon matters that have been
brought to it by the department. The Department, on the other
hand, would be in a supervisory position over you as instructor.
As Trustee, you vote on matters that directly relate to your
"supervisors" in your position of instructor in the Continuing
Education Department.
In enforcing the Ethics Law, the Commission must eliminate any
potential for a conflict of interest. The possibility exists in
this type of situation that you as Trustee might act in a
preferential manner over other departments in order to receive
favorable treatment within the Department. Conversely, the
Department may be inclined to act more favorably towards you over
other faculty members in order to advance within the University.
While the above factual scenarios are hypothetical in nature, they
illustrate the conflicts of interest or the potential for conflict
that are addressed by this Commission.
It is noted that this type of issue has been addressed
previously by the full Ethics Commission. In Woodrincr, Opinion 90-
001, the Commission held that the chairman of a redevelopment
authority could not take any action as to an authority employee who
was also the city coordinator of a rehabilitation grant program in
which the chairman of the authority was a participant. In Bassi,
Opinion 86 -007, the Commission held that a county commissioner
could not enter into a lease agreement with a municipal authority
where one of the members of the authority was a county employee who
reported directly to the county commissioners. Therefore, based
upon the controlling prior precedent of the Commission, you may not
teach a course within the Continuing Education Department without
creating a conflict of interest.
Further, the receipt of compensation of any type is not a
factor in this case. Whether you conduct the course for monetary
compensation, for "in -kind" compensation, or without compensation,
the fact remains that your position as Trustee would create a
conflict of interest prohibited under the Ethics Law were you to
teach as an instructor.
Lastly, the propriety of the proposed conduct has only been
such.
John J. Haggerty
November 8, 1993
Page 4
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 a Member of the Board of Trustees of Bloomsburg
University, you are a "public official" subject to the provisions
of the Ethics Law. As a public official, you may not, consistent
with Section 3(a) of the Ethics Law, simultaneously serve in the
positions of Trustee and instructor at Bloomsburg University.
Lastly, the propriety of the proposed course of 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.
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).
Very truly yours,
Vvx."-J\C\ oyA4
Vincent J. Dopko,
Chief Counsel