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HomeMy WebLinkAbout97-600 ContacosJonna Contacos Human Resources Director Bedford - Somerset MH /MR 245 West Race Street Somerset, PA 15501 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 31, 1997 97 -600 Re: Conflict, Public Official /Employee, Director of Human Resources, Mental Health /Mental Retardation Program, Consultant, County, DPW, Private Pecuniary Benefit, Fee. Dear Ms. Contacos: This responds to your letter of July 2, 1997 by 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 Director of Human Resources for a County Mental Health /Mental Retardation Program as to compensated consulting work. Facts: As the Director of Human Resources for the Bedford - Somerset Mental Health /Mental Retardation Program (M H /MR) (Civil Service classification - Personnel Analyst 3), you request an advisory from the State Ethics Commission as to your interest in consulting work and potential conflicts of interest under the Ethics Law. After questioning whether the Ethics Law or State Adverse Interest Act applies to you because you are a County employee, you state that the Department of Public Welfare (DPW) under Fiscal Regulation 4300.46 provides that County employees may not receive remuneration for acting as consultants or in another capacity to facilities with which the county /joinder contracts for mental health and mental retardation services, or with Commonwealth agencies. You state that you will be writing to DPW for an interpretation of that regulation. Presently, your consulting work is on an informal, non -fee basis with Somerset County Area Agency on Aging and has been limited to Strategic Human Resource Planning from an administrative perspective and Training and Development Needs Identification. You state that you are very interested in receiving a fee for future trainings with this public sector employer during your "off" time from MH /MR, such Contacos, 97 -600 July 31, 1997 Page 2 as on vacation or personal days. Individuals from other County Programs have indicated that they are interested in your services and you would like to offer your services to the private sector as well. 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 the Director of Human Resources for the Bedford Somerset Mental Health /Mental Retardation (MH /MR), 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, Contacos, 97 -600 July 31, 1997 Page 3 joint stock company, receivership, trust or any legal entity organized for profit. "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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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(f) of the Ethics Law provides as follows: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Contacos, 97 -600 July 31, 1997 Page 4 Section 3(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 3(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 3(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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. Contacos, 97 -600 July 31, 1997 Page 5 In each instance of a conflict, 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. As to the questions you pose, you are subject to the Ethics Law even as a County employee. 65 P.S. §402; 51 Pa. Code §11.1. Regarding the applicability of the State Adverse Interest Act, since the State Ethics Commission has no jurisdiction to administer that law, I am unable to respond to that inquiry. Your question regarding providing compensated consulting service in the private sector will now be addressed. The Ethics Law does not prohibit public officials /public employees from having private business interests. Under Section 3(a) of the Ethics Law, the public official /public 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 /public 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 /public 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 whole or part, to carry out private business activities. In addition, the public official /public 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. In the event that your private 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. Subject to the qualifications noted above, you may provide private consulting services under the Ethics Law. Turning to the question of whether you may provide such compensated consulting services at the County level, the answer to that question turns upon whether there is any statutory prohibition against such conduct. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 3(a) of the Ethics Law. In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the DPW Regulations must be reviewed. Assuming that the DPW Regulations prohibit the receipt of compensation for acting as consultant to such County /Commonwealth agencies, then Section 3(a) would prohibit such conduct on your part. Parenthetically, even if your conduct would be permissible under DPW Regulations, the contracting requirements of Section 3(f) of the Ethics Law noted above would be applicable and have to be satisfied. 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 Contacos, 97 -600 July 31, 1997 Page 6 involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code, State Adverse Interest Act, or any other law other than the Ethics Law. Conclusion: As the Director of Human Resources for the Bedford Somerset Mental Health /Mental Retardation (MH /MR), you are a public employee subject to the provisions of the Ethics Law. Subject to the qualifications and limitations noted above, Section 3(a) of the Ethics Law would not prohibit compensated consulting services in the private sector although any compensated consulting services to County /Commonwealth agencies would only be permitted if there is ng. statutory /regulatory prohibition against such activities. Section 3(f) and 3(j) of the Ethics Law would have to be satisfied to the extent applicable. 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. ncerely, incent . Dopko Chief Counsel