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HomeMy WebLinkAbout85-019 UrickDear Mr. Urick: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 September 12, 1985 OPINION OF THE COMMISSION Richard Urick, Esquire 85 -019 23rd & Davidson Streets Aliquippa, PA 15001 Re: Public Official, Acceptance of Prize, Municipal Authority Supplier This responds to your request of July 31, 1985, wherein you requested the opinion of the State Ethics Commission. Whether the General Manager of a Municipal Authority may personally accept a prize for which he became eligible as a result of purchasing Authority supplies from the sponsor of a contest. You represent the General Manager of a Municipal Authority. This person purchased a supply of pens to be used by employees of the Authority. Payment was to be made upon delivery of the merchandise. Upon receipt of the pens, the General Manager signed the receipt and paid approximately $180.00 from the Authority's petty cash fund. Soon thereafter the supplier notified the General Manager, in writing, that he was a prize winner in a Giveaway that the supplier had sponsored. You indicate that the individuals "eligible" in the Giveaway had to first make a purchase through the supplier. Initially, the General Manager was told he was eligible to receive one of five prizes. Later, he was notified he was the grand prize winner of $20,000.00 worth of home entertainment equipment and that he had nine (9) months to claim his prize. To date, the General Manager has not made any claim to the prize. The supplier of the merchandise does not have any specific rules and regulations regarding the Giveaway except to the extent that the person who Septemberr12, 1 98g y ui re Page 2 places the order and/or remits payment upon delivery and signs the C.O.D. receipt, becomes an "eligible contestant." You seek the opinion of the Commission as to whether this person may within the parameters of the law personally accept this prize. III. Discussion: The General Manager of the Municipal Authority is a public employee as that term is defined in the State Ethics Act. 65 P.S. §401 et. seq. As such, his conduct must conform to the requirements thereof. Beck, et. al. 80 -013; Forney v. State Ethics Commission, 425 A.2d 66, (1981). The Ethics Act provides as follows: 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). (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). We have previously determined that a public official who uses his position to obtain or otherwise accept financial gain, other than compensation provided by law, violates Section 3(a) of the Act. Sowers, 80 -050; Huff, 84 -015; Domalakes, 85 -010. We also note that Section 3(b) above, prohibits the acceptance of anything of value by a public official based upon an understanding that the official's decisions may be influenced thereby. While it does not appear as though this has occurred at this point in time, there is no doubt that such an offer to a public official may be viewed as an inducement to foster more purchases in the future by that official. Trotta, 85 -002. Richard Urick, Esquire September 12, 1985 Page 3 In reference to Section 3(a) of the Act, this person became eligible for this prize only as a result of his public position and purchases made in that position. This prize is financial gain that will be obtained by this person in and through his public office and it is not compensation provided by law. We, therefore, believe that this individual would be using his public office in violation of Section 3(a) and that he may not, therefore, personally accept this prize. The conclusion we reach herein, is also a result of Section 403(d) of the Ethics Act. Pursuant to that provision, the Ethics Commission is empowered to address other areas of possible conflict. 65 P.S. §403(d). Fritzinger, 80 -008. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, 80 -007, or where an individual serves in positions that are incompatib a or conflicting or where a public official accepts financial gain in and obtained through their public position other than their compensation. Domalakes, 85 -010. The intent of the Ethics Act in this respect is clear. In this situation, this person's eligibility in the contest was occasioned only by the purchases he made as a public official using public funds. There is no indication that this person would have entered this contest in his private capacity or if he has even frequented this business apart from his official capacity. Additionally, there are no rules or regulations for this contest and, therefore, there is no way of determining how this person was selected, who else may have participated and if any minimum purchase was required. In light of these factors, if this person were to now accept this prize, we believe that a conflict of interest would be created under §403(d) and §401 of the Ethics Act as well as Section 403(a) as previously noted. With the foregoing in mind, we note that there is no per se prohibition upon this person accepting this prize on behalf of and for the use of the Authority. See Rosenfeld, 82 -010. We do, however, caution that if accepted, the Authority's dealing with this company in the future must be conducted in accordance with approriate legal Authority. We also note that when and if the Authority decides to accept this gift, such acceptance should be publicly disclosed. Likewise, the Authority should determine for itself that this contest, was in fact, bona fide. Verification of the true "chance" nature of the contest avoids the probability of future Ethics Act violations. We must note that in the event that additional questions arise in the Authority's future dealing with this supplier, the Authority may wish to seek the further advice of this Commission. Richard Urick, Esquire September 12, 1985 Page 4 IV. Conclusion: The General Manager of a Municipal Authority who has won a prize from a business with which the Authority deals, may not under the circumstances here present, personally accept such prize. Such a benefit must inure to the Authority. Additionally, while there is no per se prohibition on the Authority's acceptance of this prize, the Authority must first determine the nature of the contest as outlined above. If after these facts are determined, the Authority elects to accept the prize, all relevant factors must be publicly disclosed. Pursuant to Section 7(9)(i), this opinion is a complete 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 /sfb By the Commission, HE : RT B. CONNER Chai rman