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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