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HomeMy WebLinkAbout94-007 DriggsMario F. Driggs, Esquire Suite 402 1608 Walnut Street Philadelphia, PA 19103 Dear Mr. Driggs: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger John R. Showers DATE DECIDED: 12/16/94 DATE MAILED: 12/27/94 94 -007 Re: Conflict, Public Official, Pennsylvania Turnpike Commission, Commissioner, Consulting /Lobbying Business, Clients, Governmental Body, Philadelphia, Pennsylvania General Assembly, U.S. Congress. This Opinion is issued in response to your request of October 19, 1994. Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a member of the Pennsylvania Turnpike Commission regarding providing consulting services for persons dealing with agencies /offices of the City of Philadelphia or registering as a lobbyist and performing services for clients as to the General Assembly of the Commonwealth of Pennsylvania or the United States Congress. II. FACTUAL BASIS FOR DETERMINATION: On behalf of Mr. Robert Brady (Brady) who is currently a member of the Pennsylvania. Turnpike Commission (PTC) you seek advice regarding the permissibility of Brady continuing his Driggs, Mario F., Esquire, 94 -007 December 27, 1994 - Page 2 membership on the PTC while at the same time starting a consulting/ lobbying practice or business. Brady plans to provide consulting services to persons, businesses, groups and associations who would deal with local government agencies or offices within the City of Philadelphia; to act as a lobbyist before the Pennsylvania General Assembly for clients whereby all services commonly associated with lobbying would be performed and to act as registered lobbyist in the U.S. Congress on behalf of clients to perform all services associated with lobbying pursuant to applicable federal law. III. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, this 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 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Commissioner for PTC, Brady is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. 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 as follows: 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 Driggs, Mario F., Esquire, 94 -007 December 27, 1994 Page 3 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. In addition, Sections 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 and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement 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 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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 Driggs, Mario F., Esquire, 94 -007 December 27, 1994 Page 4 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. If a conflict exists, Section 3(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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. As to Section 3(a) of Act 9 of 1989, the Ethics Law does not preclude a public official /employee from outside private business activities. Pancoe, Opinion 89 -011. The Preamble of the Ethics Law contains a specific recognition regarding public officials /employees "maintaining their contacts with their community through their occupations and professions." 65 P.S. §401(b). However, public officials /employees must insure that there is no conflict between their private interests and that of the public interest, the latter of which is preeminent. Crisci, Opinion 89 -013. Thus, the private interest must always yield to the public interest. Further, whenever any of the private interests of a public official /employee are before his governmental body, the public official has a conflict, must recuse himself and must observe the disclosure requirements of Section 3(j) of the Ethics Law noted above. In addition to the above conflict provision, a public official /employee who has outside private business activities must insure that he does not use his public office directly or indirectly as a vehicle to generate that business and second must insure that he does not use the government office, personnel or facilities as a means to generate, continue or perpetuate such private business activities. Hafer, Opinion 90 -013; Pancoe, supra. In applying the above principles to the instant matter, there is no prohibition upon Brady, as a sitting PTC Commissioner, from engaging in private business activities consisting of a consulting /lobbying business on behalf of private clients before Philadelphia, the Pennsylvania General Assembly and the U.S. Congress. As noted above, such private business activities must be totally divorced and separated from the duties and functions of Brady as a PTC Commissioner. Further, in the event that any of Driggs, Mario F., Esquire, 94 -007 December 27, 1994 Page 5 Brady's clients would have matters before his governmental body, PTC, Brady in all such instances would have a conflict, must recuse himself and observe the disclosure requirements of Section 3(j) of the Ethics Law. Given the position that Brady holds with PTC and given the fact that there are many vendors which deal with PTC, we must caution Brady to take particular care in his official actions as a PTC Commissioner regarding any formal or informal dealings with such vendors. In particular, the foregoing presents the potential for conflict because Brady will be using the authority of office in dealing . with such vendors in an official capacity while those vendors in a private capacity may be seeking a lobbyist to further their interests. For example, if a person has ongoing discussions about utilizing Brady for representation as a lobbyist and that person has a matter pending before the PTC, Brady would have a conflict because he would have a reasonable and foreseeable expectation of a private business relationship with that person; accordingly, he would have to recuse himself and observe the requirements of Section 3(j). See Amato, Opinion 89 -002. We are not suggesting any inappropriate actions on Brady's part but merely noting the potential for conflict under this type of factual scenario. 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 than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: A Pennsylvania Turnpike Commissioner is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law does not prohibit the public official from engaging in private consulting /lobbying business for clients before Philadelphia, the Pennsylvania General Assembly and the United States Congress. The Commissioner would have a conflict as to any matters involving his private business clients before the Pennsylvania Turnpike Commission, would have to recuse himself and would have to observe the disclosure requirements of Section 3(j) of the Ethics Law. The public official could not perform private business activities using government facilities or personnel. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. Driggs, Mario F., Esquire, 94 -007 December 27, 1994 Page 6 This letter is a public record and will be made available as 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 this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. such. By the Commission, .4....Ae]t James M. How Chair Commissioner Roy W. Wilt did not participate in this matter.