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HomeMy WebLinkAbout97-597 deGarciaSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 23, 1997 O. Frank de Garcia Executive Secretary Milk Marketing Board 2301 North Cameron Street Harrisburg, PA 17110 97 -597 Re: Conflict, Public Official /Employee, Private Employment, Business, Executive Secretary, Pennsylvania Milk Marketing Board, Partnership, Export of Agricultural Products and Machinery to Foreign Countries, Farm, Part Ownership. Dear Mr. de Garcia: This responds to your letter of June 18, 1997, in which you requested advice from the State Ethics Commission. Issue: Whether the Executive Secretary of the Pennsylvania Milk Marketing Board is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with an agricultural business in a private capacity in addition to public service. Facts: As the Executive Secretary of the Pennsylvania Milk Marketing Board (PMMB), you request an advisory from the State Ethics Commission. The PMMB is an independent State agency charged with regulating the milk industry in Pennsylvania. That regulatory authority is set out in Section 301 of the Milk Marketing Law, 31 P.S. §700j -301. As Executive Secretary of PMMB, your duties are as follows: 1. Participate in the negotiation or decision to award contracts, and take or recommend official action of a discretionary nature with regard to contracting or procurement. 2. Participate in the issuance of licenses /certificates to milk dealers, subdealers, milk haulers, weigher /samplers, and testers. 3. Take or recommend official action of a discretionary nature with regard to inspecting, licensing, regulating, or auditing persons or entities associated with the milk industry in Pennsylvania. deGarcia, 97 -597 July 23, 1997 Page 2 In the past few years you have been involved with many projects overseas. Since you have a reputation as a person with special knowledge of Spanish- speaking countries which you have acquired over the past 30 years, you are frequently contacted for advice. You have performed a number of advisory activities, including several trade promotion trips to Mexico on behalf of the Governor and various legislators and in association with the Department of Agriculture. You have also been instrumental in bringing to Pennsylvania delegations of Mexican business people with interests in the dairy and agriculture industries for discussions on trade relations. Recently you have had conversations with several individuals who are in the business of selling livestock to Puerto Rico, Mexico, and countries in the Middle East. They have asked you to consider forming a partnership in Harrisburg to export agricultural products and machinery to foreign countries. Your participation would consist of the use of your private office space and equipment and your proficiency in translating the Spanish language. You would not be involved in auctions or in purchasing livestock (rams, sheep, beef cattle, and dairy cattle) or farm machinery. Those activities would be performed on an on -going basis by the other partners. You would assist on weekends with translating, forwarding information via the Internet to those who have requested it, and translating bids and requests from other countries seeking items to purchase. You would be assisted by your mother and wife, both of whom are fluent in Spanish. You state that none of the above activities relate to the pricing of milk and none of your prospective business partners have any direct relationship with the PMMB. You will have no involvement in the process of purchasing live animals, nor will you be visiting any farms in Pennsylvania in connection with this venture. You state that you would realize a financial gain from all profit- making activities of the partnership irrespective of your direct involvement. In light of your government- connected travels and efforts to promote agricultural trade with Mexico and because of your position with the PMMB which regulates part of the agricultural industry, you request an advisory from this Commission in order to avoid misunderstandings or the appearance of impropriety. Additionally, you also request advice as to whether there would be any impropriety of your part ownership of a farm in the Republic of Mexico, State of Hidalgo, with your partner being a Mexican national. The farm would raise crops such as alfalfa as well as beef and dairy cattle for sale within Mexico. Discussion: As the Executive Secretary for the Pennsylvania Milk Marketing Board (PMMB), 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. It is noted that pursuant to Sections 7(10) and 7(11) 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. Section 3(a) of the Ethics Law provides: deGarcia, 97 -597 July 23, 1997 Page 3 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 -01 1. 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 personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in deGarcia, 97 -597 July 23, 1997 Page 4 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. As to your first question, although the Ethics Law does not prohibit such private business interests on your part, it would prohibit your use of the authority of office as Executive Secretary of PMMB to obtain or advance such business interests. As to your second question of whether you may in a private capacity be a partner with a Mexican national in a farm in Mexico, that question is beyond the scope of the Ethics Law. In the event that your business 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 your 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. 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 the Executive Secretary for the Pennsylvania Milk Marketing Board (PMMB), you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. deGarcia, 97 -597 July 23, 1997 Page 5 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. 7 erely, Vincent J. lop o Chief Counsel