HomeMy WebLinkAbout99-578 HolupkaCharles Michael Holupka, Sr.
1928 Laurel Glen Drive
Harrisburg, PA 17110
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 12, 1999
Re: Conflict; Public Official /Public Employee; Electrical Engineer 4; Turnpike
Commission; Private Employment or Business.
Dear Mr. Holupka:
This responds to your letter of June 10, 1999, by which you requested advice
from the State Ethics Commission.
Issue: Whether an Electrical Engineer 4 for the Turnpike Commission is prohibited or
restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 et sea., from working with, being employed by or associated with a
business /person in a private capacity in addition to public service.
Facts: You are employed as an Electrical Engineer 4 at the Pennsylvania Turnpike
Commission (PTC) and are assigned to the Facilities Section of the Engineering
Department. You have learned that a consulting engineering firm is interested in
employing a part-time electrical engineer. This firm is currently retained by the PTC
through another section of the Engineering Department. You are not involved in the
selection of engineering firms nor in the selection of this firm. You have provided input
for the PTC's Technical Review Committee (Committee) on whether firms are capable
of performing the assigned consulting projects. You believe this firm is well rounded and
is qualified for roadway and facilities work. The Committee determines which firms are
short - listed for presentation to the PTC.
You are not being considered for the part-time position with this firm due to past,
present or future favoritism. You will not sacrifice any of your responsibilities as an
Electrical Engineer 4 with the PTC as your primary employer. Any potential conflicts will
be resolved in favor of the PTC. You will not work on the Consultant's Turnpike projects
while employed by the firm.
You request advice under the Ethics Act as to working as a part-time employee
with a consulting engineering firm while you are employed full -time by the PTC.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the
Ethics Act, 65 Pa.C.S. §§1107(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
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.Da.us • e - mail: ethics@state.pa.us
99 -578
Holupka, 99 -578
July 12, 1999
Page 2
facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As Electrical Engineer 4 for Turnpike Commission, you are a public employee as
that term is defined under the Ethics Act, and hence you are subject to the provisions
of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. 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 1103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
Holuuka, 99 -578
July 12, 1999
Page 3
(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.
65 Pa.C.S. §1103(j).
In applying the above provisions of the Ethics Act to your inquiry, you are advised
that Section 1103(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 1103(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 emplc :e
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 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.
This Advice is limited to addressing the applicability of Section 1103(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 1103(b) and 1103(c) of the Ethics Act provide in part that
Holupka, 99 -578
July 12, 1999
Page 4
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.
Conclusion: As Electrical Engineer 4 for Turnpike Commission, you are 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 et agq., 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
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. 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.
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.
erely,
s cent J pko
Chief Counsel