HomeMy WebLinkAbout00-588 BrownBalinger "Skip" Brown
Box 164
Boiling Springs, PA 17007
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 6, 2000
00 -588
Management Development Program
Re: Conflict; Public Official/Employee; g
Administrator; Personnel Analyst 111; Department of Corrections; Non-Profit
Organization; Volunteer; Trainer; Request- For - Proposals (RFP).
Dear Mr. Brown:
This responds to your letters dated May 30, 2000 and June 7 2000, by which you
requested advice from the State Ethics Commission.
Issue: Whether the r sents Official
ny prohibition or restr restrictions upon ("Ethics Management
§1101 et seq., p
Development Program Administrator classified as a Personnel Analyst 111 for the
rofit
Department of Corrections, with regard work n ether with voluntee� pnvate
o organization, either individually or by 9 9
trainer who may respond to a request- for - proposals with the Department of Corrections.
Facts: lth As a of P e M s a, Departmentt of Corrections, you seek an advisory from
t orrimonwealth x
the State Ethics Commission.
You state that you administer training programs for the Department of Corrections.
You have submitted a copy of your job description which is incorporated herein by
refered that Administrator nce. It is not our class t title is Personn Analyst III. Your numerous duties include
Administrator and y
preparing and administering vendors requests for to R�PsPs "). You also sit on review and
recommendation p anels for
In your private capacity, you do volunteer work for a private non - profit organization for
in your community. Such The organization group
which you perform the volunteer work
other non-profit organi i
receives eives a fee to cover its administration, supp lies and equipment costs. You do not
receive any compensation o y ov e
u volunteer
your r work, and d a suC work is performed during
annual /persona1comp rY
You pose two specific inquiries. First, you ask whether your volunteer work for this
particular organization would create a conflict of interest for you.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
Brown, 00 -588
July 6, 2000
Page 2
Second, you ask whether performing the said volunteer work together with another
volunteer trainer who may respond to an RFP with the Department of Corrections would
create a conflict of interest.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based
upon the facts which the request 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, (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As a Management Development Program Administrator classified as a Personnel
Analyst III for the Department of Corrections, you are a public employee as that term is
defined in the Ethics Act, and hence you are subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
§ 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:
§ 1102. Definitions.
"Conflict" or "conflict of interest." Use by a ublic
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
Brown, 00 -588
July 6, 2000
Page 3
immediate family is a director, officer, owner, employee or has
a financial interest.
65 Pa.C.S. §1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /employee anything of monetary value and no public
official /em•loyee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /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.
Section 1103(j) of the Ethics Act provides as follows:
§ 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 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 each instance of a conflict, Section 1103(j) requires the public official /employee
to abstain and to publicly disclose the abstention and reasons for same, both orally and
by filing a written memorandum to that effect with the person recording the minutes or
supervisor.
In applying the above provisions of the Ethics Act to the instant matter, pursuant to
Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
In applying the above provisions of the Ethics Act to your inquiries, you are
advised that Section 1103(a) of the Ethics Act does not prohibit public officials /public
Brown, 00 -588
July 6, 2000
Page 4
employees from having outside business activities or employment however, the public
ffi
ocia( /public employee may not use the authority his
advancement - or confidential
anc public position private
information obtained by being in that position for of his own
eon a wn private
pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion
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 govemmental facilities, such as governmental telephon ,
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.
In response to your first specific inquiry, based upon the facts you have submitted,
there would not appear to be any conflict of interest as to your performing volunteer work
for the private non - profit organization while on leave from state employment because you
would not be using the authority of your public employment witu Department for
Corrections or confidential information received by holding such public employment
the private pecuniary benefit of yourself, a member of your immediate family, or a
business with which you or a member of your immediate family is associated.
In response to your second specific inquiry, you would not have a conflict of
interest under Section 1103(a) of the Ethics Act if the other volunteer private trainer
would respond to a request for proposals (RFP) with the Department of Corrections.
This Advice is conditioned upon the assumptions that you would not use the authority of
your public employment or confidential information received by holding such public
employment for the private pecuniary benefit of yourself, a member of your immediate
family, or a business with which you or a member of your family is transgress associated,
Sections
o s
and that there would be no improper understanding(s) which would
1103(b) or 1103(c) of the Ethics Act.
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 a Management Development Program Administrator classified as
a Personnel Analyst III for the Commonwealth of Pennsylvania, Department of
Corrections, you are a public employee subject to the provisions of the Public Official and
Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. §1101 et seq. Section 1103(a) of the
Ethics Act would not prohibit you from doing volunteer work in your private capacity and
on your own time for a private non - profit organization, either individually or by working
together with another volunteer private trainer. In your public position, you would not
have a conflict of interest under Section 0 a)f the (FP) with the Department of
private trainer would respond to a request
Corrections. This Advice is conditioned upon the assumptions that you would not be
using the authority of your public employment or confidential information received by
holding such public employment for the private pecuniary benefit of yourself, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated, and that there would be no improper understanding(s) which would
transgress Sections 1103(b) or 1103(c) of the Ethics Act. 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
t the material any other fa civil or cts and committed the acts complained r of in reliance on the Advice giv
t f
Brown, 00 -588
July 6, 2000
Page 5
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.�). 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.
7)cerely,
'
Vincent J. Cho ko
Chief Counsel