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HomeMy WebLinkAbout00-625 ConfidentialADVICE OF COUNSEL November 15, 2000 00 -625 Re: Conflict; Public Official /Public Employee; A; B; Office C; Bureau D; Private Employment or Business; Consulting /Lecturing /Training Services. This responds to your letter of October 16, 2000, by which you requested a confidential advisory from the State Ethics Commission. Issue: Whether an A classified as a B for Office C, Bureau D, would be prohibited or restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., with regard to conducting private business activities involving private consulting /lecturing /training services in addition to serving in the aforesaid public capacity. Facts: As an A classified as a B for Office C, Bureau D, you seek a confidential advisory from the State Ethics Commission. You have submitted facts which may be fairly summarized as follows. You are interested in conducting a private business to supplement your income. Specifically, you would like to provide private consulting, lecturing, and training services in the following topic areas: E -R. You note that you would expand into other areas if your business would be successful. In June 2000, you submitted to Office C a formal request for approval to conduct your proposed business. You subsequently received from Office C a general approval of your request, which approval was valid for one year and was subject to certain conditions and restrictions. You state that it would be very difficult if not impossible for you to conduct your proposed business activities under the restrictions imposed upon you by Office C. You state that the purpose of your instant request to the State Ethics Commission is to obtain a confidential advisory under the Ethics Act as to the following: (1) the propriety of conducting your proposed business activities while continuing to hold your aforesaid position of public employment; and (2) the legality of the conditions and restrictions imposed upon you by Office C relative to its approval of your request to conduct your proposed business activities. You have submitted a copy of the job classification specifications for your current position, which document is incorporated herein by reference. It is noted that in your position as an A, you are classified as a B. Confidential Advice, 00 -625 November 15, 2000 Page 2 You have also submitted copies of the following documents for review: a Memorandum dated S and a formal T dated U, by which you requested approval from Office C to engage in supplemental /outside employment; 2) letters of approval from Office C Chief of Personnel dated V and W, with the latter pertaining to a prior request which you submitted years ago; 3) the Administrative Policy of Office C regarding outside or supplemental employment, which policy is dated X; and 4) pages 4 -5, 7 -15, 29, 34 -36, and 45 of a document which you identify as the current Master Agreement of Council Y, AFSCME, which applies to you in your public position. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. § §1107(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, the 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 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an A classified as a B for Office C, Bureau D, you are a "public employee" subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. The term does not include an action having a 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 "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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint Confidential Advice, 00 -625 November 15, 2000 Page 3 stock company, receivership, trust or any legal entity organized for profit. "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 has a financial interest. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities (j) Voting conflict. - -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 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. 65 Pa.C.S. §1103(j). The above provisions of the Ethics Act shall now be applied to your inquiry. Subject to certain exceptions delineated in the definition of "conflict" or "conflict of interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a public official /public employee to use the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. You are advised that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment. However, the public official /public employee may not use the authority of his public position —or confidential information obtained by being in that position —for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other Confidential Advice, 00 -625 November 15, 2000 Page 4 property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated, Gorman, Order No. 1041, or private clients, Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002; Garner, Opinion 93 -004; Snyder, Order 979 -2, affirmed, Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). In each instance of a conflict of interest, the public official /public employee is required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). Generally, the Ethics Act would not prohibit you from providing private consulting/ lecturing /training services while continuing to hold your current position as an A for Office C, Bureau D. However, pursuant to Section 1103(a) of the Ethics Act, you could not use the authority of your public position —or confidential information obtained by being in that position —for the advancement of your private business interests. You could not pursue a private business opportunity in the course of performing the duties of your public position. You could not use governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or governmental personnel, to conduct your private business activities. You would have a conflict of interest in matters before Office C which would involve your clients. Additionally, pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using any confidential information received in your public position in conducting /pursuing your private business activities, such as, for example, confidential information pertaining to procedures or matters involving Office C. As for your remaining inquiries relating to the legality of the conditions and restrictions imposed upon you by Office C relative to its approval of your request to conduct your proposed business activities, you are advised that such matters are beyond the scope of the Ethics Act and are therefore not addressed herein. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. 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. Specifically not addressed herein is the applicability of the Z. Conclusion: As an A classified as a B for Office C, Bureau D, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. §1101 et seq. Subject to the conditions, restrictions, and qualifications set forth in this Advice, the Ethics Act would not prohibit you from providing private consulting /lecturing /training services while continuing to hold your aforesaid public Confidential Advice, 00 -625 November 15, 2000 Page 5 position. Pursuant to Section 1103(a) of the Ethics Act, you could not use the authority of your public position —or confidential information obtained by being in that position —for the advancement of your private business interests. You could not pursue a private business opportunity in the course of performing the duties of your public position. You could not use governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or governmental personnel, to conduct your private business activities. You would have a conflict of interest in matters before Office C which would involve your clients. Additionally, pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using any confidential information received in your public position in conducting /pursuing your private business activities, such as, for example, confidential information pertaining to procedures or matters involving Office C. Questions as to the legality of the conditions and restrictions imposed upon you by Office C relative to its approval of your request to conduct your proposed business activities are beyond the scope of the Ethics Act and are not addressed herein. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel