HomeMy WebLinkAbout95-624 CamposSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 1, 1995
R. Yvonne Campos 95 -624
President
Campos Market Research
216 Boulevard of the Allies
Third Floor
Pittsburgh, PA 15222
Re: Conflict, Grant Program, Participation by Public Official/
Employee, Ben Franklin Technology Center, Ben Franklin
Partnership, Department of Commerce.
Dear Ms. Campos:
This responds to your letters of October 31, 1995 and November
8, 1995, in which you requested advice from the State Ethics
Commission.
Issue: Whether a boardmember of the Ben Franklin Technology Center
of Western Pennsylvania under the Public Official and Employee
Ethics Law may participate in a grant /loan program sponsored by the
Ben Franklin Partnership through an initiative of the Department of
Commerce.
Facts: You met with the Loan Evaluation Committee of the
Pennsylvania Minority Business Development Authority, Department of
Commerce (PMBDA), seeking approval of your loan request. At that
time, you were advised by the Office of Chief Counsel for the
Department of Commerce of a potential conflict of interest because
of your involvement as Boardmember of the Ben Franklin Technology
Center. of Western Pennsylvania (BFTC) which is sponsored by the Ben
Franklin Partnership through an initiative of the Department of
Commerce.
The PMBDA and BFTC are separate entities with separate
functions and no overlap of responsibilities. BFTC is a non - profit
corporation that serves small manufacturers in the western part of
the Commonwealth. BFTC has a regional Board of Directors with its
administration by the Department of Commerce /Ben Franklin IRC
Partnership Board. The PMBDA assists minority businesses through
loans and business assistance. Lastly, although documentation was
requested as to BFTC, none has been supplied.
R. Yvonne Campos, No. 95 -624
December 1, 1995
Page 2
Discussion: As Boardmember of BFTC, vis -a -vis the Department of
Commerce, it will be assumed for purposes of this Advice that you
are a "public official" as that term is defined in the Ethics Law
and hence you are subject to the provisions of that Law. 65 P.S.
§402; 51 Pa. Code §11.1.
Sections 3(a), 3(f), and 3(j) of the Ethics Law provide:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
(f) No public official or public
employee or his spouse or child or any
business in which the person or his spouse or
child is associated shall enter into any
contract valued at $500 or more with the
governmental body with which the public
official or public employee is associated or
any subcontract valued at $500 or more with
any person who has been awarded a contract
with the governmental body with which the
public official or public employee is
associated, unless the contract has been
awarded through an open and public process,
including prior public notice and subsequent
public disclosure of all proposals considered
and contracts awarded. In such a case, the
public official or public employee shall not
have any supervisory or overall responsibility
for the implementation or administration of
the contract. Any contract or subcontract
made in violation of this subsection shall be
voidable by a court of competent jurisdiction
if the suit is commenced within 90 days of the
making of the contract or subcontract.
(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
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
R. Yvonne Campos, No. 95 -624
December 1, 1995
Page 3
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.
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 or no public official /employee shall
solicit or accept any thing 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.
The following terms are defined in 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.
R. Yvonne Campos, No. 95 -624
December 1, 1995
Page 4
"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.
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within
State government or a political subdivision
by which the public official or employee is or
has been employed or to which the public
official or employee is or has been appointed
or elected and subdivisions and offices within
that governmental body.
"Immediate family." A parent, spouse,
child, brother or sister.
"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.
Under the Ethics Law, we must observe the stated purpose of
that Act which is to strengthen the faith and confidence of people
in their government by assuring the public that the financial
interests of the holders of or candidates for public office do not
present a conflict with the public trust.
In applying the above quoted provisions of the Ethics Law to
the instant matter, we will first consider the provisions of
Section 3(f) of the Ethics Law. Since BFTC is the governmental
body with which you are associated, Section 3(f) would not apply in
this case because the contract would be with PMBDA which is not the
governmental body with which you are associated.
We will now address the propriety of the proposed conduct
under Section 3(a) of the Ethics Law. In this review, we note and
recognize the concern that arises where a public program, funded
with public monies and administered through a public agency,
political subdivision, or governmental body is also available to
public officials or employees of that agency or governmental body.
We recognize the public concern and criticism that may arise if a
public official or public employee who serves a governmental body
receives benefits under a program of this nature.
It is clear that the Ethics Law, and in particular Section
3(a), was primarily designed to restrict the activity of a public
official or employee from using the authority of office for private
pecuniary benefit. However, we believe that as a general rule the
R. Yvonne Campos, No. 95 -624
December 1, 1995
Page 5
Ethics Law was not enacted nor should it be interpreted to preclude
public officials or employees from participating in programs which
might otherwise be available to them as citizens. Wolff, Opinion
89 -030; Woodring, Opinion 90 -001.
In order to insure that a public official or employee is not
in a conflict when he seeks to participate in a rehabilitation or
grant /loan program, he must observe the following:
1. play no role in establishing the criteria under which the
program is to operate, particularly with reference to the
structure or administration of the program;
2. play no role in establishing or implementing the criteria by
which selections for program participation are to be made;
3. play no role in the process of selecting and reviewing
applicants or in awarding grants or funds;
4. use no confidential information acquired during the holding of
public office or public employment to apply for or to obtain
such funds, grants, etc., and
5. abstain, publicly disclose and file a memorandum with the
person responsible for recording the minutes under Section
3(j) of the Ethics Law in cases where the public official/
employee is associated with administering the grant or
rehabilitation program not only as to his own application but
as to similarly situated individuals with whom the public
official /employee might be competing for available funds. In
cases where Section 3(f) is applicable, the public
official /employee would be prohibited from any supervisory or
overall responsibility as to the contract or program.
Through application of the above criteria, we seek to
eliminate the possibility that a public official /employee who is
seeking such funds or seeking to participate in these programs
would be in a position to insure that the grant funds or the
program benefits would be available for his own benefit. Thus, a
public official or public employee in such a situation should
refrain from participating in making decisions or recommendations
about the program and regarding distribution of the limited funds
which might be available as a result of such a program.
Expressly conditioned upon the assumption that your conduct is
in conformance with the above criteria, you may apply for and
participate in the benefits associated with the Program.
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
R. Yvonne Campos, No. 95 -624
December 1, 1995
Page 6
interpretation of the Ethics Law. Specifically not addressed
herein is the applicability of the Code of Federal Regulations.
Conclusion: As Boardmember of the Ben Franklin Technology Center
of Western Pennsylvania, vis -a -vis an initiative of the
Pennsylvania Department of Commerce, it is assumed that you are a
public official subject to the provisions of the Ethics Law.
Section 3(a) of the Ethics Law would not preclude you from
applying for a Program grant /loan provided you played no role in
establishing the criteria under which the program would operate,
played no role in implementing the criteria for selecting
applicants, played no role in selecting or reviewing applicants,
used no confidential information and finally had no involvement
with the administration of the program. 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 thirty (30)
days of the date of this Advice pursuant to 51 Pa.Code
§13.2(h). The appeal may be received at the Commission
by hand delivery, United States mail, delivery service,
or by FAX transmission (717- 787 - 0806). Failure to file
such an appeal at the Commission within thirty (30) days
may result in the dismissal of the appeal.
erely,
I
=cent Do o
Chief Counsel