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HomeMy WebLinkAbout94-602 LeBlancSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 16, 1994 Mrs. Jan N. LeBlanc 71 Bali -Hai Road Mechanicsburg, PA 17055 94 -602 Re: Conflict, Public Official /Employee, Private Employment or Business, Project Director for County Parks and Recreation Department, Township Supervisor, Proposed Employment with Firm which is under Contract with County and Township and which also Seeks Plan Approvals in Township. Dear Ms. LeBlanc: This responds to your letter of August 12, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether a project director for a county parks and recreation department who also serves as a township supervisor may, within the parameters of the Public Official and Employee Ethics Law, be employed by or associated with a firm of landscape architects, where the firm: is under contract with the county on a project for which the project director raises funds and works with the landscape architects, among others, in designing the proposed site improvements; is under contract with the township to design two parks; and represents private developers seeking plan approvals in the township. Facts: You are a Township Supervisor in Silver Spring Township, Cumberland County, Pennsylvania. You are also employed as a Project Director for the Dauphin County Parks and Recreation Department. As Project Director, you are responsible for coordinating park design and development projects as well as fund raising for periodic Capital Campaigns. You have submitted a copy of your job description, which is incorporated herein by reference. Your job description defines your position as responsible supervisory and administrative work in a county parks and recreation department. Your work includes, inter alia, assisting in planning and supervision of department activities and exercising LeBlanc, Jan N., 94 -602 September 16, 1994 Page 2 supervision over other staff. You may collaborate with other municipalities, consultants, and interested parties in planning and implementing department activities, either in affording technical assistance or serving as a general liaison. You assist in preparation of site plans, material takeoffs, cost estimates, and feasibility studies for the development of park facilities. You assist in the development of special programs and draft proposals for such facilities. You collaborate with other governmental agencies, and with consultants, in the development of park and special- project plans. You also assist the department head in applying for and administering grants for park developments and special projects. You currently represent the interests of Dauphin County in a $2.8 million dollar public /private fund rasing effort to build a nature center, boardwalks and appropriate site amenities at Wildwood Lake Sanctuary. This Capital Campaign was initiated by the friends of Wildwood Lake Nature Center, Inc., a support group to this Dauphin County park. To date, roughly $1.2 million dollars has been raised. Your services to the Capital Campaign include writing all foundation proposals and grant packages, presenting the project to prospects, making "the ask ", recording and acknowledging all funds received, and the like. You also work with the architects, landscape architects, and engineers in designing the proposed site improvements. The situation you now face is that Edward Black of H. Edward Black & Associates Landscape Architects has asked you to join his firm as the Director of Marketing. The firm is under contract with Dauphin County on the Wildwood Project. The firm is under contract with Silver Spring Township to design two parks. The firm also represents private developers seeking plan approvals in Silver Spring Township. You are interested in accepting the position with the firm, but feel that you need to bring the Capital Campaign to a successful conclusion. In order to accommodate the Capital Campaign as well as the firm's need for a Director of Marketing, you have proposed to work part -time for Mr. Black (during evenings, weekends, vacation time, etc.) while continuing as a full time_ county employee during the course of the Capital Campaign. Ultimately, you would become a full -time employee of H. Edward Black & Associates. Mr. Black, who also strongly supports the Wildwood Project has accepted your proposal. However, when you presented this concept to Dauphin County, the Chief Clerk, Jeffrey Haste, indicated that the State Ethics Laws do not allow a county employee to be employed by a company which is under contract to the county. Based upon the above information, you pose the following three LeBlanc, Jan N., 94 -602 September 16, 1994 Page 3 scenarios and related specific inquiries: 1. Given your intention to eventually accept the offer of employment presented by H. Edward Black, you submitted a memorandum to the Township Board of Supervisors outlining the situation and you have abstained from voting on any projects submitted by H. Edward Black & Associates for approval by the Silver Spring Township Board of Supervisors. You are concerned as to the public perception because of the standing offer of employment. You ask whether you are correct in abstaining even though you are not currently on the firm's payroll. 2. It is your understanding that the Ethics Law does not allow you to participate in discussion of projects with H. Edward Black & Associates for plan approval in Silver Spring Township. You ask whether this law would apply to work currently being performed by the firm for Silver Spring Township. You ask whether, given your 18 years of experience in recreation, you may suggest design considerations /alterations to the other supervisors to improve the proposed design and ultimately benefit the Township residents. You ask whether you should vote in this situation. 3. Based upon the information related to your role as a county employee, you ask whether the Ethics Law would allow you to become a part -time employee of H. Edward Black & Associates. If you are permitted to have an association with H. Edward Black & Associates as long as you are not involved with the Wildwood Project, you ask to what extent your involvement must be limited. You ask whether you may work with the architects and engineers on the design of the building and entrance drive. You ask whether you may continue to raise funds for the construction of all site improvements whether designed by H. Edward Black & Associates or others. Based upon all of the above, you request an advisory from the State Ethics Commission. Discussion: As a Township Supervisor for Silver Spring Township, Cumberland County, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. As a Project Director for the Dauphin County Parks and Recreation Department, you are a public employee as that term is defined under the Ethics Law, and hence, in that position as well, you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: LeBlanc, Jan N., 94 -602 September 16, 1994 Page 4 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. 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 LeBlanc, Jan N., 94 -602 September 16, 1994 Page 5 response to the question presented. 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. 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 a private employer or business or its client or customer has a matter pending before the governmental body or if the public official /public employee 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 is necessary that the public official /public employee be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that the public official /public employee abstain from participation but also file a written memorandum to that effect with the person recording the minutes or the supervisor of the public employee. 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 LeBlanc, Jan N., 94 -602 September 16, 1994 Page 6 per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. Having set forth the above principles, the Ethics Law would not prohibit you from having outside employment just because you are a Township Supervisor and a Project Director for a County Parks and Recreation Department. However, you could not use the authority of either position -- or confidential information received by being in either position -- to advance an opportunity of employment with H. Edward Black & Associates. Likewise, any "improper understanding" which would violate Section 3(b) and /or 3(c) of the Ethics Law would be prohibited. Absent any such concerns, the Ethics Law would not preclude you from accepting employment with H. Edward Black & Associates. Your employer would, by definition, be a business with which you are associated. Therefore, as an employee of H. Edward Black & Associates -- full or part time -- you could not use the authority of either of your public positions, or confidential information received by being in either of these positions for the private pecuniary benefit of your employer and /or its clients. You would have a conflict of interest as to any matter before you in either of your public positions involving that firm and /or its clients. In each instance of a conflict of interest, you would be required to abstain from any participation and to fully satisfy the disclosure requirements of Section 3 (j) . Turning to your specific inquiries, you ask whether you are correct in abstaining from voting on projects submitted by H. Edward Black & Associates at the present time, even though you are not currently on the firm's payroll. This Advice is unable to answer this question because the facts which you have submitted do not provide a sufficient factual basis to determine whether voting on such matters would constitute a use of authority of office in violation of Section 3(a) to advance your prospective employment with that firm. Turning to your second specific inquiry, you ask whether you would presently be restricted as to work currently being performed by the firm for Silver Spring Township, and whether you could suggest design considerations /alterations to the ot.er Supervisor to improve the proposed design and ultimately benefit the Township residents. You additionally ask whether you should vote in these situations. It is initially noted that the abstention requirements of the Ethics Law are not limited to voting. To the contrary, a use of authority of office, and thus any required abstention, would include any official action, such as participating in the official discussions of the Supervisors and advising them on your views. Juliante, Order 809. Thus, if you have a conflict of interest at LeBlanc, Jan N., 94 -602 September 16, 1994 Page 7 this time (which cannot be determined based upon the submitted facts for the same reasons noted in the response above to your first specific inquiry), that conflict would preclude anv participation as Ito these matters. Your third specific inquiry asks whether the Ethics Law would allow you to become a part time employee of H. Edward Black & Associates. As noted above, the Ethics Law does not preclude a county employee from having outside employment as long as the restrictions set forth in the discussion above are observed. You ask to what extent your involvement with the Wildwood project would have to be limited should you simultaneously hold both positions, and specifically whether you could work with the architects and engineers on the design of the building and entrance drive. Similarly, you ask whether, as a County Project Director and employee of H. Edward Black & Associates, you could continue to raise funds for all site improvements whether designed by H. Edward Black & Associates or others. The necessary response to your questions is that were you to hold both of these positions simultaneously such that H. Edward Black & Associates would be your private employer, your abstention from the Wildwood project would have to be complete abstention. You could not in any way use the authority of your public position for the private pecuniary benefit of your private employer. Although it might theoretically be possible that some particular aspect of the project would not result in a private pecuniary benefit for your employer, to the extent your involvement might further the success of the project so as to insure its completion and resulting payment to your employer, you would have a conflict of interest. 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 County Code and /or the Second Class Township Code. Conclusion: As a Township Supervisor for Silver Spring Township, Cumberland County, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. As a Project Director for the Dauphin County Parks and Recreation Department, you are a public employee as that term is defined under the Ethics Law, and hence, in that position as well, you are subject to the provisions of that 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. As to each of your public roles, in LeBlanc, Jan N., 94 -602 September 16, 1994 Page 8 the event that your private employer and /or its client or customer has matters pending before your governmental body, then you may 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAS transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result is the dismissal of the appeal. cerely, Vincent Dopko Chief Counsel