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HomeMy WebLinkAbout94-607 HavilandJohn J. Haviland DPW Surplus Property Officer Division of Procurement Department of Public Welfare 229 Health and Welfare Building Harrisburg, PA 17105 Dear Mr. Haviland: STATE 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 94 -607 Re: Conflict, Public Official /Employee, Administrative Officer, DPW, DGS, Surplus Property, Auctioneer. This responds to your letter of August 18, 1994 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 a surplus property officer in the Department of Public Welfare from conducting auctions for the Commonwealth as part of his duties of public employment. Facts: You are employed as an Administrative Officer 1 in the Department of Public Welfare (DPW) since 1990, currently functioning as DPW Surplus Property Officer. One of your duties is to arrange for the disposal of surplus items located in various DPW mental health facilities, mental retardation centers and youth development centers throughout the Commonwealth. Although Commonwealth facilities accumulate large amounts of surplus items that are obsolete to the Departments and other Commonwealth agencies, there is a use and demand for such i -tems in the public sector. Past experience has found that the easiest and most efficient and profitable method of disposal is through the auction process. The Department of General Services (DGS) has contracted with a licensed auctioneer to conduct public auctions on an as needed basis. Since all expenses including advertising, travel, and wages are the auctioneer's responsibility, the auctioneer may feel that the surplus items accumulated for sale may not generate enough revenue to cover such wages and expenses resulting in a declination to conduct any given auction. Such action would leave Haviland, John J., 94 -607 September 22, 1994 Page 2 the Commonwealth with the dilemma of disposing of large quantities of surplus items. You have proposed a possible solution to DGS State Surplus Property Division. After consulting with the DGS Legal Department which agrees with your proposal, you suggest that when the Commonwealth- contracted auctioneer rejects a possible sale, you would be permitted to conduct the sale being a licensed practicing auctioneer. Such activity would be performed as part of your existing work related duties and you would receive no compensation other than your salary. All proceeds of the auction would go to the Commonwealth's General Fund, and all expenses for advertising and personnel to assist at the sale would be the responsibility of the facility for which the sale is being conducted. You have received approval from DPW on October 21, 1991 as per a request for supplementary employment. All of your supervisors including the Secretary of DPW are aware of your outside activity. All sales would be conducted in the presence of a DGS State Surplus Property Division representative who would be responsible for the transmission of all sales proceeds to the Department's Controller. In order to avoid any possible employment problems, you request a ruling on whether a conflict would exist which would jeopardize your employment with the Commonwealth if you would conduct public auctions of Commonwealth facilities as part of your assigned job duties as the DPW Surplus Property Officer. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 5 5407(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 material facts relevant to the inquiry. 65 P.S. 65407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Administrative Officer for DPW, you are a public 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: Haviland, John J., 94 -607 September 22, 1994 Page 3 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 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: • Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of Haviland, John J., 94 -607 September 22, 1994 Page 4 interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the provisions of Section 3(a) of the Ethics Law to the instant matter, you would not have a conflict of interest in this matter for the reason that you would not be using the authority of office for a private pecuniary benefit for yourself. In particular, you have stated that you would be engaging in such activities as part of your Commonwealth employment and that you would not be receiving any compensation for performing such duties other than your salary. Therefore, based upon your factual statement that you would be receiving no compensation for the activity other than your Commonwealth salary, Section 3(a) of the $thics Law would not prohibit such activity. See Saurman, Opinion 94 -004. 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 Governor's Code of Conduct. 8aviland, John J., 94 -607 September 22, 1994 Page 5 Conclusion: As Administrative Officer for DPW, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit you as a DPW employee from conducting auctions of Commonwealth surplus property as part of your duties of employment for which you would receive no compensation other than your salary as a public employee. 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. 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 mail, delivery service, or by FAZ transmission (717 -787 -0806) . Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Si erely, Vi cant J. opk Chief Counsel