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HomeMy WebLinkAbout00-515 PhilpCharylene Philp, Director North Central Region Math /Science Education Collaborative 112 Carrier Building Clarion University of Pennsylvania Clarion, PA 16214 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 15, 2000 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 00 -515 Re: Conflict; Public Official /Public Employee; Contracting; Director; Clarion County Conservation District; North Central Region Math /Science Education Collaborative; Business With Which Associated. Dear Ms. Philp: This responds to your letter of January 10, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 at seq., presents any prohibition or restrictions upon a member of the board of directors of a county conservation district as to serving in such capacity when she is also a director of a non - profit organization that is under contract with the conservation district. Facts: You have recently been appointed by the Clarion County Commissioners to serve on the Board of Directors of the Clarion County Conservation District (CCCD). You currently are the Director of the North Central Region Mathematics /Science Education Collaborative (NCRMSEC), a non - profit organization. For the past year, NCRMSEC has been under contract with CCCD to conduct educational programs for the Board of Directors including the Envirothon and Earth Day activities. You anticipate that the contract will continue. NCRMSEC receives payment for coordinating and conducting the educational opportunities for local teachers, students and adults from the Conservation District. NCRMSEC does fund some activities through grants that it writes. In light of the above, you seek an advisory as to whether you may serve on the Board of Directors of the CCCD. 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 Philp, 00 -515 February 15, 2000 Page 2 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of the Board of Directors for Clarion County Conservation District (CCCD), you would be a "public official" as that term is defined in the Ethics Act and hence you are /is subject to the provisions pf that Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1 65 Pa.C.S The defined as Sections 1103(a), and 1103(j) of the Ethics Act provide as follows: 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. (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. . §§1103(a), (j). following terms that pertain to conflicts of interest under the Ethics Act are follows: Section 1102. Definitions. "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or Philp, 00 -515 February 15, 2000 Page 3 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. "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(f) of the Ethics Act, which pertains to contracting /subcontracting, provides as follows: Section 1 103. Restricted activities. (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 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. 65 Pa.C.S. §1103(f). The following terms that pertain to Section 1 103(f) are defined in the Ethics Act as follows: Philp, 00 -515 February 15, 2000 Page 4 Section 1102. Definitions. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa.C.S. §1102. In applying the above provisions of the Ethics Act to your inquiry, Section 1 103(a) shall be addressed first. There is no prohibition under Section 1 103(a) of the Ethics Act in serving on the Board of Directors of the CCCD when the North Central Region Mathematics /Science Education Collaborative (NCRMSEC) is under contract to provide services to CCCD. A conflict would arise under the Ethics Act where there would be use by a public official /public employee of 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 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). Based upon the facts which you have submitted, NCRMSEC is a "business" with which you, as its Director, are associated. First, the definition of the term "business" as set forth in the Ethics Act is very broad. Novak, Opinion No. 91 -009. NCRMSEC would at least be an "organization" within that definition. Second, the fact that NCRMSEC is a non - profit organization would not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the preceding forms of entities in the list. See, Soltis- Sparano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; Philp, 00 -515 February 15, 2000 Page 5 McConahy, Opinion No. 96 -006). Since NCRMSEC is a "business" as that term is defined in the Ethics Act, it is clearly a business with which you are associated in your capacity as an officer, specifically, a Director. See, Id., at 31 -32. Accordingly, you are advised that pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your public position as a Member of the Board of Directors of the CCCD, or any confidential information, to solicit or promote business activity between NCRMSEC and CCCD, and would have a conflict as to matters regarding NCRMSEC that would come before CCCD. In each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 1 103(j) set forth above. As for Section 1103(f), you are advised that Section 1103(f) of the Ethics Act 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 1 103(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 /public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. Where Section 1103(f) applies, its requirements must be strictly observed. Under the facts which you have submitted, the governmental body with which you would be associated would include CCCD. Accordingly, the contract between NCRMSEC and CCCD would be subject to the restrictions of Section 1103(f). This Advice is limited to addressing the applicability of Sections 1 103(a) and 1 103(f) 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 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1 103(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. Lastly, 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. Philp, 00 -515 February 15, 2000 Page 6 Conclusion: As a Member of the Board of Directors for Clarion County Conservation District (CCCD), you would be a public official subject to the provisions of the Ethics Act. There is no prohibition under Section 1 103(a) of the Ethics Act in serving on the CCCD when the North Central Region Mathematics /Science Education Collaborative (NCRMSEC) is under contract to provide services to CCCD. A conflict would arise under the Ethics Act, where there would be use by a public official /public employee of the authority of his public position or confidential information 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. NCRMSEC is a business with which you are associated. Therefore, pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your public position as a Member of the Board of Directors of CCCD or confidential information to solicit or promote business activity between NCRMSEC and CCCD, and would have a conflict as to matters regarding NCRMSEC that would come before CCCD. In each instance of a conflict of interest, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. The restrictions of Sections 1103(f) 1103(j) and of the Ethics Act as set forth above must be observed. 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 rely, Vincent J. Dopko Chief Counsel