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HomeMy WebLinkAbout94-606 StojekSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 22, 1994 Thomas A. Stojek P.O. Box 114 Hawk Run, PA 16840 94 -606 Re: Conflict, Director of County Office of Economic Development, Candidate for County Commissioner /Treasurer. Dear Mr. Stojek: This responds to your letters of April 7, 1994 and August 19, 1994, 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 county economic development director from seeking office as a county commissioner /treasurer. Facts: You plan to seek elected public office in Clearfield County in 1995 as either a County Commissioner or a County Treasurer. You inquire as to whether anything would prevent your waging a campaign for either County office while you are employed by Clearfield County with your salary paid with reimbursements from the federally funded Community Development Block Grant (CDBG) program. You have been employed as the Clearfield County Director of Economic Development since January 1995. After noting that a job description for your position has never been developed, you enclosed a position classification questionnaire which you prepared and submitted to the Clearfield County Commissioners on July 22, 1992, which is incorporated herein by reference. In your current position you manage all aspects of the County CDBG program and activities to ensure compliance with federal \state deadlines. In addition, you annually write the Three Year Community Development Plan. You work closely with rural communities serving as a liaison between them, the county, state and federal agencies in order to further the development projects and assist in all aspects of project application in budget including the selection of professional services, the identification of other funding services through leveraging, the preparation of environmental assessments for each project activity, public hearings and meetings and door to Stojek, Thomas A., 94 -606 September 22, 1994 Page 2 door income surveys. Federal CDBG programs administered in accordance with "State Act 179" and the Federal Sousing and Community Development Act, submitted. Your annual compensation of $37,869.00 is paid from the Clearfield County General Fund Budget of which amount approximately seventy percent of your time is eligible for reimbursement from the CDBG program. Discussion: As Director of Economic Development for Clearfield County, you are a "public employee" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 6402; 51 Pa. Code 511.1. 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 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 hilt - 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. Stojek, Thomas A., 94 -606 September 22, 1994 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 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. In applying the above provisions of the Ethics Law to the question above, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve both as a public official /employee and run for public office as County Commissioner /Treasurer. Basically, the Ethics Law does not state that it is inherently incompatible for a public official / employee to serve or be employed as County employee and run for County office. 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, you 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, you 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 above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities, employment or political activities; 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 activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business or other activities using governmental facilities or Stojek, Thomas A., 94 -606 September 22, 1994 Page 4 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 nonpublic activities. In addition, the public official /employee could not during government working hours, solicit or promote such business or other activities. 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. See Freind, Order 800. Lastly, 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, the Civil Service Act, or any other state or federal law. Conclusion: As Economic Development Director for Clearfield County, you are a "public employee" subject to the provisions of the Ethics Law. As a public employee, you may, consistent with Section 3(a) of the Ethics Law, serve in the position of County Economic Development Director and run for the County Office of County Commissioner /Treasurer, subject to the restrictions, conditions and qualifications set forth above. 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 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. such. 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 Stojek, Thomas A., 94 -606 September 22, 1994 Page 5 msil delivery service, or by FAS traaamission (717 -787 - 0806). Failure to file such an appeal at the Commisaion within fifteen (15) days may result in the dismissal of the appeal. cerely, tA.vc.AAN)0 Vincent . Dopko Chief Counsel