HomeMy WebLinkAbout95-517 StephensDear Mr. Stephens:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 17, 1995
S. Dean Stephens
R.R. 1, Box 11
Liverpool, PA 17045 95 -517
Re: Conflict, Public Official /Employee, Private Employment or
Business, Sewage Enforcement Officer.
This responds to your letter of January 17, 1995, in which you
requested advice from the State Ethics Commission.
Issue: Whether a sewage enforcement officer is prohibited or
restricted by the Public Official and Employee Ethics Law from
working with, being employed by or associated with a
business /person in a private capacity in addition to public
service.
Facts: On October 25, 1993 you submitted an application to DER for
a permit to recycle septage bio- solids on portions of several of
your farms located in Susquehanna Township, Juniata County and
Liverpool Township, Perry County, Pennsylvania. Your application
was determined to be administratively complete in the Southcentral
Regional Office of the Department of Environmental Resources (DER)
on February 9, 1994, at which time DER initiated its technical
review which had to be completed within 120 days of administrative
completeness. On November 5 ,1994, you received technical review
comments from DER with a recommendation that you contact this
Commission for a legal determination concerning the following
matter:
"Although it is the Department's understanding that
the applicant (me) is not currently employed as a Sewage
Enforcement Officer, concerns have been previously raised
about the potential conflict of interest between the
applicant (me) being employed as a Sewage Enforcement
Officer and operating a septage pumping /hauling business
and a land application site. The Department's legal
staff have advised that this may represent a conflict of
interest."
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Stephens, S. Dean, 95 -517
February 17, 1995
Page 2
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Since you are still employed in a limited capacity as an SEO
by several local municipalities, you are following through to
issuance of septic system permits for projects as to which you
completed the required testing field work.
Although your plans were to relinquish your SEO duties after
DER issued your land application permit, you were forced to
terminate all of your lucrative SEO field activities because of
statements made and questions raised by various public officials
and employees. You are a Pennsylvania licensed surveyor and
engineer and assert that various statements have damaged your
professional reputation.
You are now employed by Delaware Township, Turbett Township,
Juniata Township, Rye Township, Watts Township and also Perry
Township; in all of the above jobs, you are employed as an SEO but
at your request you are required to limit your activities to
issuing permits for projects where you completed the site testing.
Each of the above municipalities has employed other SEO's.
You state that Title 25, Chapter 72.41 under Powers and Duties
of Sewage Enforcement Officers restricts an SEO in conducting
tests, issuing permits, participating in the official processing of
an application or the official review of a planning module for an
individual or community on -lot sewage system where the SEO, his
relative, business associate or employer, other than the local
agency, has a financial interest. After stating that you have
explained that DER's Waste Management Program has specific
requirements pertaining to conflicts of interest and that all
municipalities participating in on -lot programs are required to
employ alternate SEO's who would handle the particular projects
where there is potential for a conflict of interest, you express
your understanding that DER's Water Management Program personnel
who administer the SEO program do not see your employment as an SEO
to be a problem. However, since the Waste Management recommends
that you receive an advisory, you seek such an advisory noting that
you are being hindered in making a reasonable living by persons who
are bowing to public pressure rather than just following the rules
and regulations that have been promulgated.
Discussion: As an SEO for various municipalities, 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
Stephens, S. Dean, 95 -517
February 17, 1995
Page 3
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
been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Stephens, S. Dean, 95 -517
February 17, 1995
Page 4
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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 your private employer or business has a
matter pending before your governmental bodies or if you 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 will be necessary that you be removed from that
process.
Under the Ethics Law, you as an SEO in your official capacity
would have a conflict in any of the following situations:
reviewing /approving any matters wherein you provided services to
private clients, as for example, as a surveyor or engineer, matters
involving your own septage pumping /hauling business and land
application matters; and any matters involving yourself in a
private capacity, your immediate family or any business with which
you are associated or any clients for whom you provided private
services. Miller, supra; Kannebecker, Opinion 92 -010.
In such cases as noted above, Section 3(j) of the Ethics Law
would require not only that you abstain from participation but also
file a written memorandum to that effect with the person recording
the minutes.
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
Stephens, S. Dean, 95 -517
February 17, 1995
Page 5
public position;
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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
per the requirements of Section 3(j) of the Ethics Law.
Brooks, Opinion 89 -023.
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 respective municipal codes or
DER regulations.
Conclusion: As an SEO for various municipalities, you are a public
official /employee subject to the provisions of the Ethics 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 any matters wherein you would
have a conflict, you could not participate in such matters 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
Stephens, S. Dean, 95 -517
February 17, 1995
Page 6
mail, delivery service, or by FAX 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.
ncerely,
vtk
Vincent J. Dopko
Chief Counsel