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Home My WebLink About00-630 GreenhoweVenetta Greenhowe 11520 Frankstown Road Penn Hills, PA 15235 Dear Ms. Greenhowe: ADVICE OF COUNSEL December 14, 2000 00 -630 Re: Conflict; Public Official /Public Employee; Personal Care Home Licensing Representative; Department of Public Welfare; Private Employment or Business. This responds to your letter of November 7, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether a Personal Care Home Licensing Representative for the Department of Public Welfare is prohibited or restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., from serving as a project director for a child care facility's junior field trip program. Facts: You are a full -time Personal Care Home Licensing Representative for the Department of Public Welfare, western region. You have submitted a copy of your job description, which is incorporated herein by reference. You are also the President /CEO of the non - profit corporation, AV Property Acquisition Corp., dba Tiny Tots Learning Center. You ask whether you would have a conflict of interest if you would serve as the Project Director for Tiny Tots Learning Center's Junior Field Trip Program in a paid or unpaid capacity. As Project Director, you would work for nine months —five hours each evening and ten hours on Sunday. Occasionally, during your unpaid lunch hour, you would be at the Field Trip location or in the Junior Field Trip office. Your responsibilities as Project Director would include supervising staff, coordinating field trips, writing lesson plans and maintaining records. You state that AV Property Acquisition applied for a grant from Pennsylvania's Quality Initiative Grant issued through Child Care Partnerships and that 75% of the Junior Field Trip Program is funded by that grant. 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 Greenhowe, 00 -630 December 14, 2000 Page 2 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Personal Care Home Licensing Representative for the Department of Public Welfare, you are a public employee as that term is defined under the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: $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: $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. 65 Pa.C.S. §1102. "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 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. Section 1103(j) of the Ethics Act provides as follows: $1103. Restricted activities. Greenhowe, 00 -630 December 14, 2000 Page 3 (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). In applying the above provisions of the Ethics Act to your inquiry, you are advised that Section 1103(a) of the Ethics Act does not prohibit a public official /public employee 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 No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 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 in his private capacity, such as the review /selection of its bids or proposals, Gorman, Order No. 1041. If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). Having established the above, you are advised as follows. AV Property Acquisition Corp., dba Tiny Tots Learning Center is a "business" with which you, as President /CEO, are associated. First, the definition of the term "business" as set forth in the Ethics Act is very broad. Novak, Opinion No. 91 -009. As a corporation, AV Property Acquisition Corp. is clearly within that definition. Moreover, the fact that AV Property Acquisition Corp. is a non - profit corporation would not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated Greenhowe, 00 -630 December 14, 2000 Page 4 use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the initial word "corporation ": Any corporation, ... or any legal entity organized for profit." The clear and unambiguous statutory language is that any corporation, including a non - profit corporation, is a "business." Soltis - Sparano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConahy, Opinion No. 96 -006). Since AV Property Acquisition Corp. is a "business" as that term is defined in the Ethics Act, it is clearly a business with which you associated in your capacity as President /CEO. Although Section 1103(a) of the Ethics Act would not preclude you from serving as the Project Director for Tiny Tots Learning Center's Junior Field Trip Program in a paid or unpaid capacity, you could not use the authority of your public position or confidential information for the private pecuniary benefit of yourself or AV Property Acquisition Corp., dba Tiny Tots Learning Center as noted above. You would have a conflict specifically as to Pennsylvania's Quality Initiative Grant and generally as to AV Property Acquisition Corp. In each instance of a conflict, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. 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 Governor's Code of Conduct. Conclusion: As a Personal Care Home Licensing Representative for the Department of Public Welfare, you are a public employee subject to the provisions of the Ethics Act. AV Property Acquisition Corp., dba Tiny Tots Learning Center, of which you are the President /CEO, is a business with which you are associated. Section 1103(a) of the Ethics Act would not preclude you from serving as the Project Director for Tiny Tots Learning Center's Junior Field Trip Program in a paid or unpaid capacity. However, you could not use the authority of your public position or confidential information for the private pecuniary benefit of yourself or AV Property Acquisition Corp., dba Tiny Tots Learning Center. You would have a conflict specifically as to Pennsylvania's Quality Initiative Grant and generally as to AV Property Acquisition Corp. In each instance of a conflict, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. 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. Greenhowe, 00 -630 December 14, 2000 Page 5 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