Loading...
HomeMy WebLinkAbout97-579 DonettaDonetta D'Innocenzo Director Bureau of Contract Administration and Business Development Department of General Services 502 North Office Building Harrisburg, PA 17125 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 11, 1997 97 -579 Re: Conflict, Public Official /Employee, Director, Bureau of Contract Administration and Business Development, Department of General Services, Spouse, Business with which Associated, Government /Public Relations Firm, Clients. Dear Ms. D'Innocenzo: This responds to your letter of May 7, 1997 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 the Director of the Bureau of Contract Administration and Business Development for the Department of General Services, in matters involving her spouse's government /public relations business and /or its clients. Facts: As the Director of the Bureau of Contract Administration and Business Development (BCABD) for the Commonwealth of Pennsylvania, Department of General Services (DGS), you seek an advisory from the State Ethics Commission. BCABD's numerous functions include reviewing applications for certification and re- certification of Minority and Women's Business Enterprises (MBE /WBE), reviewing bids from contractors and /or vendors to determine compliance with MBE/WBE provisions as to responsiveness and responsibility, and reviewing proposals with respect to socially and economically restricted business participation. Your spouse recently started his own business which focuses primarily upon government and public relations. You state that you do not have a financial interest in the business nor do you participate in the operation of the firm. Although your husband has not yet represented any client's interest before DGS, he has recently been retained by a contractor who intends to bid on public works projects. You note that your husband's firm will not be bidding or submitting proposals to DGS. D'Innocenzo, 97 -579 June 11, 1997 Page 2 In the event that your husband's firm is retained by a client to communicate and /or meet with DGS on any matter, you state that you will automatically refrain from any discussion or participation with respect to that matter even if it does not require action on the part of BCABD. Although it is your belief that this would eliminate even the perception of a conflict of interest, you request an advisory from this Commission as to this matter. 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. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Director of the Bureau of Contract Administration and Business Development (BCABD) for the Department of General Services (DGS), you are a public 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 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. D'Innocenzo, 97 -579 June 11, '1997 Page 3 "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 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 D'Innocenzo, 97 -579 June 11, 1997 Page 4 immediate family, or a business with which he or a member of his immediate family is associated. Your husband is a member of your immediate family and therefore his business is a business with which a member of your immediate family is associated. Consequently, you would have a conflict of interest pursuant to Section 3(a) of the Ethics Law in matters before you, in your public capacity, where your husband's business and /or its clients are involved. See, Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92 -010. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Of course, the fact that conflicts of interest may arise for you would not preclude you from maintaining your present employment, nor would your husband's clients be precluded from doing business with your governmental body. Mead /Bieber, Opinion No. 96 -008. 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 Director of the Bureau of Contract Administration and Business Development (BCABD) for the Commonwealth of Pennsylvania, Department of.General Services (DGS), you are a public employee subject to the provisions of the Ethics Law. You would have a conflict of interest pursuant to Section 3(a) of the Ethics Law in matters before you, in your public capacity, where your husband's business and /or its clients are involved. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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 I. 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 D'Innocenzo, 97 -579 June 11, 1997 Page 5 Commission within thirty (30) days may result in the dismissal of the appeal. naere y, 140 Vincent J. opko Chief Counsel