HomeMy WebLinkAbout98-629 McKeeDwight L. McKee
205 Oak Knoll Rd.
New Cumberland, PA 17070 -2836
Re: Conflict; Public Official /Public Employee; Private Employment or Business;
Special Investigator In- Charge; Office of Inspector General.
Dear Mr. McKee:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
December 23, 1998
98 -629
This responds to your letter of November 20, 1998, by which you requested
advice from the State Ethics Commission.
Issue: Whether a Special Investigator In- Charge of the Pennsylvania Office of
Inspector General is prohibited or restricted by the Public Official and Employee Ethics
Law from being self - employed in addition to public service.
Facts: You are employed as the Special Investigator In- Charge for the Harrisburg
headquarters of the Pennsylvania Office of Inspector General.
In July, 1998, you submitted to Inspector General Nicolette Parisi a request to
engage in supplementary employment. You have submitted a copy of your
Supplementary Employment Request, which document is incorporated herein by
reference.
According to the Supplementary Employment Request, you intend to begin
operating your own business in addition to serving in your public employment position.
Your business will be known as "Trojan Coach." The proposed business activity
involves the conversion of motor vehicles for surveillance use by law enforcement and
investigative agencies /individuals, as well as the provision of photography, video, and
related support services. Based upon market demand, the converted vehicles will be
purchased, leased or rented by local or federal law enforcement agencies, private
investigative businesses or individuals, under payment or contractual arrangements.
In the Supplementary Employment Request, you state:
The sole purpose of this self - employment will be to offer surveillance vehicles
to the investigative community. I will not conduct or otherwise participate in
the surveillance investigations or other intended uses of the surveillance vehicles
by the user.
Supplementary Employment Request at 2.
FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us
McKee, 98 -629
December 23, 1998
Page 2
You have also submitted a copy of the response to your request, which consists
of a one -page Supplementary Employment Request Agency Notification dated
September 8, 1998, which appears to have been signed by the Inspector General, and
cover memorandum dated September 10, 1998 from Robert Berkoben, Personnel
Officer, Executive Offices. The Supplementary Employment Request Agency
Notification states, inter alia:
I find no actual or apparent conflict of interest issues with the construction of
the surveillance van. I approve that activity. I find minimal potential for actual
or apparent conflict of interest issues regarding contracts with federal or local
law enforcement agencies or private entities. However, as this activity is
speculative at this time, it would be premature to approve or disapprove that
part of your request.
You request an advisory from the State Ethics Commission as to whether the
Public Official and Employee Ethics Act would present any restrictions with regard to
your proposed supplemental self - employment.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(11) of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11
( "Ethics Act "), 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. An advisory only affords a defense to the extent the
requestor has truthfully disclosed all of the material facts.
As the Special Investigator In- Charge for the Harrisburg headquarters of the
Pennsylvania Office of Inspector General, you a public employee as that term is
defined under the Ethics Act, and hence you are subject to the provisions of that Act.
Sections 1 103(a), (f), and (j) of the Ethics Act provide as follows:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(f) Contract. - -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
McKee, 98 -629
December 23, 1998
Page 3
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.
(j) Voting conflict. - -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.
Act 93 of 1998, Chapter 11, §§1103(a), (f), (j).
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term 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.
McKee, 98 -629
December 23, 1998
Page 4
"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.
"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. The term 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.
Act 93 of 1998, Chapter 11, §1102.
In applying the above_ provisions of the Ethics Act to your inquiry, you are
advised that Section 3(a) of the Ethics Act 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 -011. 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
official /public employee would be required to abstain from participation and to satisfy
the disclosure requirements of Section 1103(j).
McKee, 98 -629
December 23, 1998
Page 5
Under the facts which you have submitted, Section 1103(a) of the Ethics Act
would not preclude you from outside employment /business activity subject to the
restrictions and qualifications as noted above.
As for Section 1103(f) of the Ethics Act, you are advised that Section 1103(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 1 103(f) requires that an "open and public process" be
observed as to the contract with the governmental body. Pursuant to Section 1103(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 1103(f) of the Ethics Act 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.
Since the facts which you have submitted do not indicate whether such
contracting /subcontracting would occur with regard to the governmental body with
which you are associated - -that is, the Pennsylvania Office of Inspector General- -this
Advice may only generally advise you that the restrictions of Section 3(f) would have
to be observed if and when applicable.
This Advice is limited to addressing the applicability of Sections 1103(a), (f),
and (j) of the Ethics Act. It is expressly assumed that there has been no use of
authority of office for a private pecuniary benefit as prohibited by Section 1 103(a) of
the Ethics Act. Further, you are advised that Sections 1 103(b) and (c) of the Ethics
Act provide in part that no person shall offer to a public official /public employee and
no public official /public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
official /public 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.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: As the Special Investigator In- Charge for the Harrisburg
headquarters of the Pennsylvania Office of Inspector General, you a public employee
subject to the provisions of the Ethics Act. Section 1 103(a) of the Ethics Act 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 would have
McKee, 98 -629
December 23, 1998
Page 6
matter(s) pending before your governmental body, then you would be required to
abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act
set forth above. The restrictions of Section 1103(f) of the Ethics Act must be
observed if and when applicable. Lastly, the propriety of the proposed conduct has
only been addressed under the Ethics Act.
Pursuant to Section 1107(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.
Vincent J. Dopko
Chief Counsel