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HomeMy WebLinkAbout89-017 RichardsonDear Mr. Richardson: 1989. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington James M. Howley Michael J. Washo DATE DECIDED: September 27, 1989 DATE MAILED: October 10, 1989 Mr. Wayne M. Richardson State System of Higher Education Commonwealth of Pennsylvania P.O. Box 809 301 Market Street Harrisburg, PA 17108 89 -017 Re: Public employee, Conflict, Travel, Exchange Program, Paid Expenses. This opinion is issued in response to your request of July 5, Whether the Public Official and Employee Ethics Law prohibits employees of the State System of Higher Education from traveling to foreign countries to tour higher education facilities regarding the creation of exchange programs where the expenses for the trip are paid by the foreign countries. II. Factual Basis for Determination: As Chief Counsel for the State System of Higher Education, hereinafter, State, you request an advisory regarding the propriety of educational missions to foreign nations undertaken by State employees with costs underwritten by the nations involved. Various nations seek to establish educational ties with the State and periodically invite presidents, faculty and employees to tour Mr. Wayne M. Richardson Page 2 their educational facilities and confer with their counterparts regarding exchange programs. Generally, the costs of these trips are paid by the host nations. Prior trips have resulted in the creation of programs; for example, the Chinese Cultural University of Taiwan and Bloomsburg University are parties to a cross - enrollment agreement where Chinese Cultural University graduate students matriculate at Bloomsburg with tuition, fees and costs paid by the Chinese Cultural University to Bloomsburg. Bloomsburg employees or officials do not personally benefit from the arrangement. You note that the above arrangement is a typical exchange program which the educational policy makers of third world nations are eager to establish with American universities by funding the costs of educational missions of State officials and employees to their nations. The educational missions to date have not included the spouses of the university presidents or faculty /administrators who take these trips. There are no sidetrips which are unrelated to the educational mission and expenses are handled through the university rather than by the public employee. You ask whether the above practice may continue under the current Ethics Law. III. Discussion: The presidents and faculty /administrators are "public employees" as that term is defined under the Public Official and Employee Ethics Law. Accordingly, they are subject to the provisions of the Ethics Law and restrictions therein are applicable to then. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public 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. "Conflict" or "conflict of interest" does not include an action having a de minimis economic Mr. Wayne M. Richardson Page 3 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 or 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. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. In determining whether expense paid trips by foreign nations for State employees relative to education exchange programs are in accord with the Ethics Law, we note that the incurred expenses only relate to the educational mission and that expenses are paid through the university rather than on an individual basis to the employee himself. See Huff, Opinion 84 -015, Dacrhir, Opinion 86 -012. Based upon the above, Section 3(a) of the Ethics Law would not prohibit such activity because there would not be a use of the authority of office for private pecuniary benefits. These trips would be clearly job related functions of the State employees. In Rosenfeld, Opinion 82 -010, we determined that a mayor could accept a trip paid for by a foreign nation as part of his official duties. The same rationale applies to the instant matter because the trips are made within the context of the official responsibilities of the State employees. Therefore, the State employees are not prohibited from the educational missions under Section 3(a) of the Ethics Law. We also note that these expenses for transportation and lodging would not have to be reported on the Statement of Financial Interests under Section 5(7)(i) of the Ethics Law because they are expenses which are reimbursed by a governmental body as that term is defined under the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other Mr. Wayne M. Richardson Page 4 than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Iv. Conclusion The State System of Higher Education presidents and faculty /administrators are "public employees" subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit State employees from traveling to foreign countries to tour higher education facilities relative to exchange programs where the expenses for the trip, which are paid by the foreign countries, relate to the purpose of the trip. Such expenses need not be reported on the Statement of Financial Interest because they are reimbursed by a governmental body as provided for by Section 5(7)(i) of the Ethics Law. The propriety of the proposed conduct has been considered under the Ethics Law only. 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. such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of the Opinion. The person requesting reconsideration should present a detailed explanation setting for the reason why the Opinion required reconsideration. TLG /emg This letter is a public record and will be made available as By the Commission, 652 &/// Helena G. Hughes, Chair