Loading...
HomeMy WebLinkAbout96-515 VacsulkaMichael Vacsulka 411 Atlantic Avenue Pittsburgh, PA 15221 -4017 Dear Mr. Vacsulka: 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 28, 1996 96 -515 Re: Conflict, Public Official /Employee, Civil Service Commission, Member, Private Employment or Business, Auxiliary Police Association. This responds to your letter of January 30, 1996, in which you requested advice from the State Ethics Commission. Issue: Whether a member of the Civil Service Commission 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: You are currently a member of the Forest Hills Auxiliary Police Association (Auxiliary) which is an unpaid, volunteer organization with vacancies filled from within the Auxiliary Police membership rather than by Council appointment. The Auxiliary's function is to assist with extra traffic flow at community or local group functions. You have recently been appointed by the Forest Hills Council (Council) to fill a vacancy on the Civil Service Commission (CSC) which position is also unpaid and voluntary. You request advice as to whether it would be a conflict of interest for you to maintain both positions. Additionally, you submitted a copy of a letter from William Hogan, the newly appointed Council President, and the response letter from yourself and Helen Kotler, Esquire. Discussion: As member of the Civil Service Commission, 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. The foregoing is based upon a review of the attachments to your submission which suggest that the CSC is not merely an advisory board. Vacsulka, 96 -515 February 28, 1996 Page 3 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. If the Auxiliary is a business with which you are associated as the term is defined under the Ethics Law and the Auxiliary has a matter pending before your governmental body 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. 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 or the supervisor. 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 per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. In this case, it would appear that CSC reviews matters involving the Borough police and possibly other Borough employees but not the Auxiliary. Furthermore, it does not appear that you, as an unpaid volunteer for the Auxiliary, would be a director, officer, owner, employee, or have a financial interest in the Auxiliary. If the above assumptions are factually correct, you, under the Ethics Law, would not have a conflict and may serve as a member of the CSC while you simultaneously are an unpaid volunteer for the Association. 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. Conclusion: As a member of the Civil Service Commission (CSC), it appears that you are a public official subject to the provisions of the Ethics Law. If the CSC deals only with matters of the Borough police and /or Borough employees but not the Auxiliary or if the Auxiliary is not a business with which you are associated as the term is defined under the Ethics Law, under Section 3(a) of the Ethics Law, you would not have a conflict and may serve as an unpaid /volunteer member of CSC while you are an unpaid volunteer of the Auxiliary, subject to the qualifications noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Vacsulka, 96 -515 February 28, 1996 Page 2 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: 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. 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 Vacsulka, 96 -515 February 28, 1996 Page 4 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 such. 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, incent J. '� op 1 6(1 Chief Counsel