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HomeMy WebLinkAbout89-003 YerusalimHoward Yerusalim, P.E. Secretary of Transportation Department of Transportation Harrisburg, PA 17120 Dear Mr. Yerusalim: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: February 22, 1989 DATE MAILED: March 7, 1989 II. Factual Basis for Determination: 89 -003 Re: PennDot Secretary, Pennsylvania Turnpike Commission Chairman, Business with which he is Associated, Immediate Family, Son, Employment of Son by a Company that does Business with the Commonwealth of Pennsylvania This opinion is issued in response to your request of February 13, 1989. Whether the State Ethics Act imposes any prohibition or restrictions upon the Secretary of the Department of Transportation and Chairman of the Pennsylvania Turnpike Commission regarding the employment of his son, as part of his student program in a cooperative educational institution, by a company that does business with the Commonwealth of Pennsylvania or the Pennsylvania Department of Transportation or the Pennsylvania Turnpike Commission. You are the Secretary of the Pennsylvania Department of Transportation, hereinafter PennDot and Chairman of the Pennsylvania Turnpike Commission, hereinafter PTC. You have a 19 year old son who is currently a sophomore at Drexel University in Philadelphia, Pennsylvania majoring in business administration. Drexel University is a cooperative educational institution in which students in their sophomore year have a curriculum whereby they go to school for six months and then work for six months. The work program is designed to give students experience in their field of study. In March of this year the first work period will begin for your son who has expressed a desire to work in Harrisburg rather than in Philadelphia. There is a strong likelihood that the company for which your son will work does business with the Commonwealth of Pennsylvania and in particular either PennDot or PTC. All of the job interviews for your son are arranged through Drexel's cooperative educational coordinator and you Howard Yerusalim, P.E. Page 2 have no input as to which companies would interview your son. Drexel has already arranged several interviews. After noting the immediacy of the situation, you pose three questions under the Ethics Act: 1. Whether your son may take a job with the company that does business with either the Commonwealth, PennDot or PTC; 2. If your son takes such a position, whether any restrictions would be imposed upon the type of work he could perform or the contacts that he could have; and 3. If your son takes a position, what restriction would be imposed upon your dealings with the company. III. Discussion: Initially, it is noted that the first two questions you pose concern the conduct of your son. Since your son is not a "public official" or "public employee" as those terms are defined under the Ethics Act, your son is not subject to the jurisdiction of this Commission. Therefore, the Ethics Act would not restrict the proposed conduct of your son as set forth in your first two questions. The third question you pose relates to your conduct. As Secretary of PennDot and Chairman of PTC, you are a public official as that term is defined under the Ethics Act and:the Regulations of this Commission. 65 P.S. S402; 51 Pa. Code 51.1. Accordingly, you are subject to the restrictions of the Ethics law. Section 3(a) of the Ethics Act provides: 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. S403(a). Under Section 3(a) quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, A.2d (1983); Yacobet, Order No. 412 -R, Howard Yerusalim, P.E. Page 3 affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. + In order to apply the provisions of the above quoted Section of the Ethics Act, it is necessary to review the definitions of the terms "business with which he is associated" and "immediate family ". "Business with which he is associated" is defined as follows: Section 2. Definitions. "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 holder of stock. 65 P.S. 5402. Since the statutory definition of "business with which he is associated" specifically includes a business wherein a member of your immediate family is an employee, the company that would employ your son would be a "business with which he is associated" provided your son is a member of your "immediate family" as that term is defined under the Ethics Act. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. S402. The above definition necessitates a review of the Regulations of this Commission which define the term "minor dependent child ". "Minor dependent child" is defined as follows: Section 1.1. Definitions Minor dependent child - -- A person under 18 years of age who lived in the household of the person -- - filer - -- required to file a financial interest statement during the reporting period and whom the filer claimed as a dependent on the filer's Federal income tax return for the equivalent reporting period. 51 Pa. Code S1.1. Howard Yerusalim, P.E. Page 4 Since your son is 19 years of age, he is not a "minor dependent child" as that term is defined under the Regulations of this Commission. Therefore, your son is not a member of your "immediate family" and, derivatively, the company that would hire your son would not be a "business with which - -- [you are] associated" as that term is defined under the Ethics Act and Regulations of this Commission. It is expressly assumed that you have no financial interest in the company that would hire your son. In light of the above, Section 3(a) of the Ethics Act would not impose any restrictions upon you regarding your dealings with such a company, subject to the qualification as noted above. Section 3(b) of the Ethics Act provides: (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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). Under the above provision of law, this Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. S403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of Howard Yerusalim, P.E. Page 5 the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. S401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. In relation to the above cited provision of law, this Commission has determined that the definitional limitations applicable to the other Sections of the Act are not relevant to questions addressed under Section 3(d). Leete, Opinion 82 -005. As such, this Commission has placed restrictions upon various actions of public official's and employees when acting upon matters that involve relatives outside of the previously cited definition. O'Reilly, Opinion 83 -012. Under Section 3(d) of the Ethics Act, you would be restricted from dealing with the company that would hire your son in that you could not participate in any matter involving that company. In particular, it would be necessary for you under Section 3(d) of the Ethics Act to abstain and publicly note your abstention in all matters which would relate to that company. 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. IV. Conclusion: Since your son is not a public official /employee under the Ethics Act and not subject to the jurisdiction of this Commission, the Ethics Act would not restrict your son from taking a job with a company that does business with the Commonwealth, PennDot or PTC nor would it restrict your son in terms of the type of work or contracts that he would have. As Secretary of PennDot and Chairman of PTC, you are a public official subject to the provisions of the Ethics Act. Although, Section 3(a) of the Ethics Act would not restrict your dealings with the company that would hire your son, subject to the such. Howard Yerusalim, P.E. Page 6 qualification noted above, Section 3(d) of the Ethics Act would preclude you from participating in any matter which would relate to the company that would hire your son and you would have to publicly note your abstention. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 evidence of the advice given. This letter is a public record and will be made available as Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, • Joseph W. Marshall, III Chairman