HomeMy WebLinkAbout98-584 Confidentialfi -7J
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
July 24, 1998
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us
98 -584
Re: Conflict; Public Official /Employee; Private Employment or Business; Administrative
Officer; Commission A; Part-time Employment; Consultant; International
Consulting Firm; Corporation B, Division C; United States Department D; E;
Organization F.
This responds to your letter of July 15, 1998 by which you requested confidential
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents any
prohibition or restrictions upon the Administrative Officer of Pennsylvania's
Commission A with regard to part -time employment by an international consulting firm.
Facts: As the Administrative Officer for Pennsylvania's Commission A, you seek
a confidential advisory from the State Ethics Commission as to whether you may
accept part -time employment as a consultant with an international consulting firm.
The international consulting firm which seeks to employ you is Division C of
Corporation B, hereinafter also referred to as "the Consulting Firm."
The Consulting Firm, which is based in the United States, is in the process of
competing for a contract sponsored and administered by the United States Department
D for consulting services concerning the integration of E into Organization F. The
Consulting Firm has approached you regarding utilizing your services as a consultant.
If you would accept employment with the Consulting Firm, your specific role would be
the assessment of the E civil and military logistics systems and the development of a
proposed plan to facilitate E's integration into G and Organization F. You would be
required to sign a contract stating that the Consulting Firm would have exclusive rights
to consulting services for the purposes of this contract. You would be paid a daily
consulting fee by the Consulting Firm and would be reimbursed for all expenses
incurred in the performance of your contract.
Noting your position as the Administrative Officer of Commission A, you believe
it to be wise and proper for you to seek formal and confidential advice in this matter.
Discussion: It is initially 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
Confidential Advice, 98 -584
July 24, 1998
Page 2
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 Administrative Officer of. Pennsylvania's Commission A, you are a public
employee as that term is defined in the Public Official and Employee Ethics Law
( "Ethics Law "), and hence you are subject to the provisions of that law. See, Mead,
Opinion No. 96 -008.
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,
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.
Confidential Advice, 98 -584
July 24, 1998
Page 3
If you would accept the proposed part -time employment with Division C of
Corporation B ( "the Consulting Firm "), it would be a business with which you would
be deemed to be associated.
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.
In applying the above provisions of the Ethics Law to your inquiry, you are
advised that Section. 3(a) of the Ethics Law does not prohibit public officials /public
employees from having outside business activities or employment; however, the public
official /public employee may not use the authority of his public position — or
confidential information obtained by being in that position — for the advancement of
his own private pecuniary benefit or that of a business with which he is associated.
Pancoe, Opinion 89 -01 1. Examples of conduct that would be prohibited under Section
3(a) would include: (1) the pursuit of a private business opportunity in the course of
public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as
governmental telephones, postage, staff, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity
as to matters involving the business with which the public official /public employee is
associated in his private capacity, such as the review /selection of its bids or proposals,
Gorman, Order No. 1041.
If the private employer or business with which the public official /public
employee is associated would have a matter pending before the governmental body,
the public official /public employee would have a conflict of interest as to such matter.
Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public
Confidential Advice, 98 -584
July 24, 1998
Page 4
official /public employee would be required to abstain from participation and to satisfy
the disclosure requirements of Section 3(j).
Upon review of the specific facts which you have submitted, Section 3(a) of the
Ethics Law would not preclude your proposed part -time employment as a consultant
subject to the restrictions and qualifications of Sections 3(a) and 3(j) as noted above.
In accordance with those restrictions, such private business activity would have to be
performed on your own time and at no expense to your Commonwealth employer.
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 Administrative Officer for Pennsylvania's Commission A,
you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of
the Ethics Law would not preclude your proposed part -time employment as a
consultant with Division C of Corporation B subject to the restrictions and
qualifications of Sections 3(a) and 3(j) as noted above. In accordance with those
restrictions, such private business activity would have to be performed on your own
time and at no expense to your Commonwealth employer. If your other employer
would have matter(s) pending before your Commonwealth agency, you would be
required to abstain and to satisfy the disclosure requirements of Section 3(j) of the
Ethics Law 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 1. 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.
S' rely,
�h _o
Vincent J. Do o
Chief Counsel