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HomeMy WebLinkAbout96-563 JackBrenda Jack Research Associate Information Resources PA Housing Finance Authority 2101 North Front Street PO Box 8029 Harrisburg, PA 17105 -8029 Dear Ms. Jack: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 5, 1996 • 96 -563 Re: Public Employee; Research Associate; Pennsylvania Housing Finance Agency; Independent Representative; American Communications Network; LC1 International, Inc.; Long Distance Telephone Carrier; Proposals to Commonwealth Agencies. This responds to your letter of May 2, 1996 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 Research Associate for the Pennsylvania Housing Finance Agency, who is also privately employed as a part-time independent representative of a customer acquisition company for a particular long distance telephone carrier, with regard to submitting proposals to Commonwealth agencies asking that they become customers of the long distance telephone carrier. Facts: You are presently employed by the Pennsylvania Housing Finance Agency (PHFA) as a Research Associate in the Information Resources Division. You are also employed on a part-time basis as an Independent Representative for American Communications Network (ACN), a customer acquisition company for LCI International, Inc., a long distance telephone carrier. As an Independent Representative marketing LCI long distance service, your business is operated from your home and under your given name. You have submitted a copy of the contract you signed with ACN and your renewal application for this year, both of which are incorporated herein by reference. You would like to submit proposals to Commonwealth agencies asking that they consider becoming customers of LCI. You ask whether such conduct would be a conflict of interest or would otherwise violate the Ethics Law. Jack, 96 -563 June 5, 1996 Page 2 Copies of your position description and organizational chart have been obtained from PHFA and are incorporated herein by reference. Discussion: The initial question to be answered is whether in your position with PHFA, you are within the definition of "public employee" and therefore subject to the Ethics Law: 65 P.S. §402. Section 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a non - ministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. Based upon the definition of "public employee" and in Tight of the job description and the organizational chart for the position, the necessary conclusion is that you are not a "public employee" as that term is defined in the Ethics Law. An objective review of the pertinent information indicates that you are not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee." Thus, because you are not within the definition of the term "public employee," you are not subject to the provisions of the Ethics Law, except for Sections 3(b) /3(c) which apply to everyone. Sections 3(b) /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. 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. Jack, 96 -563 June 5, 1996 Page 3 Conclusion,: In your position as a Research Associate for the Pennsylvania Housing Finance Agency, you are not to be considered a "public employee" as defined in the Ethics Law, and therefore you are not subject to the provisions of the Ethics Law except for Sections 3(b) /3(c) which apply to everyone. 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 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. rely, Vincent J. opko Chief Counsel