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HomeMy WebLinkAbout99-541 MartinLouis R. Martin 214 State Street Harrisburg, PA 17101 Dear Mr. Martin: 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 April 20, 1999 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 99 -541 Re: Conflict; Public Employee; Relocation Specialist; Pennsylvania Turnpike Commission; Private Employment or Business. This responds to your letter of March 22, 1999, by which you requested advice from the State Ethics Commission. Issue: Whether a relocation specialist for the Pennsylvania Turnpike Commission is prohibited or restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 fig., from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You are writing on behalf of Mr. John Frank (Frank), to request an advisory regarding his interest in part -time evening and weekend employment with a private consulting company. Frank is currently employed by the Pennsylvania Turnpike Commission (PTC) wherein he works as a Relocation Specialist in the Legal Department as to the acquisition and condemnation of property. Frank's area of expertise is in the relocation or alternative appropriate compensation of owners of residential, commercial or industrial property acquired or condemned by PTC. You request an advisory on Frank's behalf pursuant to 65 Pa.C.S. §1107(11). The private consulting company has approached Frank to obtain his services as to a contract it has with the Pennsylvania Department of Transportation (PennDOT) to perform turnkey acquisition, relocation and condemnation in relation to the expansion of several existing highways in the Commonwealth. Frank's efforts would be limited to contracts with PennDOT, local municipalities or utilities but not with PTC. There is a possibility that the private consulting company coincidently would have contracts to perform this type of work for PTC. Frank seeks guidance as to whether he may work part -time in the evenings and on weekends for theprivate consulting company performing consulting services for the company on PennDOT contracts. Discussion: It is initially noted that pursuant to Sections 1107(10) and (1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Martin, 99 -541 Page April 20, 1999 As a Relocation Specialist for PTC, Frank is a public employee as that term is defined under the Ethics Act, and hence Frank is subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Section 1 103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). 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. "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. 65 Pa.C.S. §1102. Section 1 103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (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 Martin,. 99 -541 April 20, 1999 Page 3 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. 65 Pa.C.S. §1103(j). In applying the above provisions of the Ethics Act to your inquiry, you are advised that Section 1 103(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 -01 1. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a rivate 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 pproperty, 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 1 103(j). Under the facts which you have submitted, Section 1103(a) of the Ethics Act would not preclude Frank from outside employment /business activity subject to the restrictions and qualifications as noted above. This Advice is limited to addressing the applicability of Section 1 103(a) 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 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the 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. Martin, 99 -541 April 20, 1999 Page 4 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 State Adverse Interest Act. Conclusion: As a Relocation Specialist for Pennsylvania Turnpike Commission, Frank is a public employee subject to the provisions of the Ethics Act. Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 would not preclude Frank from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business would have matter(s) pending before his governmental body then Frank would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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. An such appeal must be in writing and must be actually r v 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. S cerely, Vincent J. Dopko Chief Counsel