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HomeMy WebLinkAbout96-588 ChesnuttWilliam A. Chesnutt Chief Counsel Pennsylvania Turnpike Commission PO Box 67676 Harrisburg, PA 17106 -7676 Dear Mr. Chesnutt: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 30, 1996 96 -588 Re: Conflict, Public Official /Employee, Pennsylvania Turnpike Commission, Commissioner, Business With Which Associated, Insurance, Contract Negotiations, Client, Vote, Vote Against Interests. This responds to your letters dated August 1, 1996 (received August 7, 1996) and August 12, 1996 in which you requested advice from the State Ethics Commission. It is noted that in addition to your correspondence, the Commission staff has spoken with you by telephone to obtain additional facts and clarification which are included below. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Pennsylvania Turnpike Commissioner as to voting in favor of terminating contract negotiations with an entity which currently obtains insurance coverage through a broker with which the Commissioner is associated. Facts: As Chief Counsel of the Pennsylvania Turnpike Commission, you request an advisory on behalf of Pennsylvania Turnpike Commissioner Robert A. Gleason, Jr. (Gleason). Through a prior vote, in which Gleason did not participate since he was absent, the Pennsylvania Turnpike Commission directed its staff to commence negotiations to complete a contract with a particular entity for work involving a fiber optic network. The Pennsylvania Turnpike Commission has no existing or past contractual relationships with the entity in question. Commissioner Gleason is Chairman of the Board of an insurance agency which does business with that very entity. The Commission staff did as it was told to do. It negotiated with the entity. It is now the staff's recommendation that such efforts be terminated, and that it would not be in the Commission's best interests to contract with that entity. There is now a 2 -2 split of the Board on this issue. It is your expectation that if Gleason is Chesnutt /Gleason, 96 -588 August 30, 1996 Page 2 permitted to vote, he will vote in favor of terminating the negotiation efforts, which will in essence be a vote against the interests of his business client. Your specific inquiry is whether Gleason may vote in favor of terminating the previously authorized contract negotiations with the entity which currently obtains insurance coverage through a broker with which Gleason is associated. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(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. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Commissioner with the Pennsylvania Turnpike Commission, Robert A. Gleason, Jr. (Gleason) is a public official as that term is defined under the Ethics Law, and hence he is 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: 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. Chesnutt /Gleason, 96 -588 August 30, 1996 Page 3 "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. 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 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Chesnutt /Gleason, 96 -588 August 30, 1996 Page 4 In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The insurance agency for which Gleason is Chairman of the Board is a business with which he is associated. Generally, a public official /public employee has a conflict of interest under Section 3(a) in matters involving a business client. See, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. Likewise, the Commission has held that a public official /public employee cannot use the authority of office or confidential information he has access to by being in his public position to work a financial detriment to business competitors. Pepper, Opinion 87 -008. However, under the facts which you have submitted, whereby it is assumed that Gleason's official action would be against the interests of the business client such that the client would suffer a financial detriment, and that there would be n_o other basis for a prohibited private pecuniary benefit, the requisite element of a private pecuniary benefit would be lacking and a violation of Section 3(a) would not result. 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. Conclusion: As a Commissioner with the Pennsylvania Turnpike Commission, Robert A. Gleason, Jr. (Gleason) is a public official subject to the provisions of the Ethics Law. Subject to the conditions, restrictions, and qualifications noted above, a vote by Gleason to terminate the Pennsylvania Turnpike Commission's negotiation efforts with an entity which currently obtains insurance coverage through an insurance agency for which Gleason is Chairman of the Board, would not result in a violation of Section 3(a) of the Ethics Law to the extent that such a vote would be against the interests of the business client. 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. Chesnutt /Gleason, 96 -588 August 30, 1996 Page 5 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(17). 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. SkrFerely, 11 Vincent J. Dopko Chief Counsel