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HomeMy WebLinkAbout85-001 WeissDear Mr. Weiss: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 February 27, 1985 OPINION OF THE COMMISSION Mr. Robert H. Weiss 85 -001 West Chester State University Philips Memorial Building West Chester, PA 19383 Re: Conflict of Interest, State College Faculty Member, Lobbying for State Funds This responds to your letter of January 23, 1985, in which you requested advice from the State Ethics Commission. Issue: Whether there is any conflict of interest or violation of the State Ethics Act if you lobby for Commonwealth funding of a state -wide educational program at the same time that you serve as a member of the West Chester State University faculty. Facts: You are currently a member of the West Chester State University faculty, hereinafter, University. Additionally, you serve as the Director of the Pennsylvania Writing Project, hereinafter, Project, located at the University. The Project is an educational program for teachers, which serves to train and prepare teachers in local school districts, for the proper instruction of writing methods. The Project has been funded through private foundations and through monies supplied by local school districts. The Project is administered through the University. As Director of the Project you negotiate contracts with local school districts, authorize the purchase of materials necessary for the Project operation, assist in the development of grant proposals and teach courses in relation to the Project objectives. Robert H. Weiss February 27, 1985 Page 2 In addition to the Project site at the University, there are a number of other sites within the Commonwealth of Pennsylvania. These Project sites are, at this time, operated independently of each other. You have indicated that you, along with the other site directors, wish to communicate with Pennsylvania legislators in an effort to secure direct funding from the. Commonwealth to create a state -wide network of writing projects. Discussion: A number of issues have been presented by the question that you have raised. At the forefront of the issues presented is whether any employee or official of West Chester State University may, under the Ethics Act, be considered a public employee or public official. The State System of Higher Education, hereinafter, the System, is a specifically established "government instrumentality." 24 P.S. §20- 2002 -A. West Chester State University is one of the fourteen (14) institutions included in the System. The Act defines "institution," in reference to these fourteen institutions as "State -owned colleges and universities." 24 P.S. §20-2001-A. In addition to the foregoing, each institution is governed by a council of trustees consisting of 11 members, all of whom are appointed by the Governor with the advice and consent of the Senate. Additionally, the System is ruled by a Board of Governors consisting of sixteen members, including the Governor and the Secretary of Education or appropriate designees, and 14 members appointed by the Governor with the advice and consent of the Senate. 24 P.S. §20- 2004 -A; §20- 2009 -A. Finally, judicial pronouncements have established that the fourteen institutions comprising the system are state agencies, owned and operated by the Commonwealth and are engaged in governmental functions. See; Williams v West Chester State College, 370 A. 2d 774, 29 Pa. Commonwealth Ct. 240, 1977; Butler v Cheyney State College, 61 D.& C. 2nd 60. In light of the foregoing, officials and employees of the institutions comprising the System, unless otherwise exempted under the law, must be considered public employees or public officials within the purview of the Ethics Act. Public employee is defined as: Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: Robert H. Weiss February 27, 1985 Page 3 (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. As noted above, if your duties were exclusively related to teaching, you would not be subject to the provisions of the Act as such position is specifically exempted. The information submitted, however, indicated that as Project Director you perform a number of administrative duties on behalf of the University. These duties include the negotiation of contracts, the authorization of service purchase contracts and procurement of materials for the operation of the Project, and assisting in the development of grant proposals. These are the type of functions customarily performed by individuals who have been determined to be public employees within the Act. (See Rules of the State Ethics Commission 51 Pa. Code §1.1). As such, you are a public employee subject to the provisions of the Ethics Act. Turning now to the specific question presented, the Ethics Act places no per se prohibition on your communication with members of the Pennsylvania General Assembly regarding the Project funding at the same time that you serve as faculty member. You must, however, conduct your activity in accordance with the provisions of the Ethics Act. The Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his - public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Robert H. Weiss February 27, 1985 Page 4 This Section of the Act would be applicable if, for example, you, a member of your immediate family or a business with which you are associated, were to receive some type of compensation from the funds obtained through your lobbying efforts. Additionally, you must avoid any other conflict of interest or apearance of a conflict of interest that may arise during your effort to obtain funding for the Project. This prohibition mandates that you not serve the interests of two persons, groups or entities, whose interestsare or may be adverse; that is, the activities in which you engage must not conflict with the interests of the University. Opinion No. 80 -007, Alfano. In such situation further advice may be required. Insofar as you will be representing your public employer, i.e., the University in relation to the funding of a Project that is sponsored by and administered through the University, there appears to be no conflict of interest at this time. I note in closing that our review of this question is limited to the applicability of the Ethics Act. We are not empowered to nor would we be able to render a determination of or requirement of any other provisions of law. Conclusion: While you are a public employee within and subject to the provisions of the Ethics Act, the Act does not place any per se restriction upon the activity you propose. The conduct, however, must conform to the requirements of the Ethics Act as outlined above. Pursuant to Section 7(9)(i), this opinion is a canplete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /sfd By the Commission, / 'HERBERT B. CONNER Chairman