HomeMy WebLinkAbout01-558 DoubRuby T. Doub
1325 Williams Street
Harrisburg, PA 17102
Dear Ms. Doub:
ADVICE OF COUNSEL
May 22, 2001
01 -558
Re: Conflict; Public Official /Public Employee; Mobilization & Alignment Division; Imagine
PA; Office of Administration; PennDOT; Private Employment or Business; Business
With Which Associated; Contract.
This responds to your letter of April 23, 2001, by which you requested advice from
the State Ethics Commission.
Issue: Whether an employee of the Office of Administration, Mobilization &
Alignment Division of Imagine PA, is prohibited or restricted by the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., from becoming a majority
owner of a publishing company that has ongoing contracts with Commonwealth agencies.
Facts: On April 16, 2001, you accepted a position in the Mobilization & Alignment
Division with Imagine PA, an Enterprise Resource Project under the direction of the Office
of Administration. For the past 19 years you were employed by PennDOT, most recently
as the Manager of the Municipal Training Division in the Bureau of Municipal Services.
You have been offered the opportunity to become a 51 % owner of a small minority
owned publishing company. The publishing company has ongoing contracts with
PennDOT and other state agencies. If you would become a majority owner of the
publishing company, you would continue in your current position with Imagine PA.
You ask what restrictions apply to you as a majority owner. You further ask what
restrictions apply to the publishing company as far as business with the Commonwealth is
concerned.
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 employee of the Office of Administration, Mobilization & Alignment Division of
Imagine PA, it is assumed for purposes of this advice that you are a public employee
under the Ethics Act, and hence you are subject to the provisions of that Act.
Doub, 01 -558
May 22, 2001
Page 2
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
"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.
65 Pa.C.S. §1102.
Section 1103(j) of the Ethics Act provides as follows:
$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
Doub, 01 -558
May 22, 2001
Page 3
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 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 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.
Having established the above, your specific inquiry shall now be addressed.
Assuming you would become a 51% owner of the publishing company, that
company would be a business with which you, as owner, would be associated. It would
make no difference whether you would be a minority or a majority owner. If a matter
involving the publishing company would come before you in your official capacity as an
employee of the Office of Administration, you would have a conflict of interest as to such
matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, you would be
required to abstain from participation and to satisfy the disclosure requirements of Section
1103(j).
Regarding your question as to the restrictions that apply to the publishing company,
you are advised that the restrictions outlined above apply to you as a public employee. In
that advisories under the Ethics Act are limited to addressing prospective conduct of public
officials and public employees only, this advisory cannot and does not address issues
concerning the publishing company itself.
Under the facts that you have submitted, Section 1103(a) of the Ethics Act would
not preclude you from outside employment /business activity subject to the restrictions and
qualifications as noted 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
Doub, 01 -558
May 22, 2001
Page 4
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
Governor's Code of Conduct.
Conclusion: As an employee of the Office of Administration, Mobilization &
Alignment Division of Imagine PA, it is assumed for purposes of this advice that you are a
public employee subject to the provisions of the Ethics Act. Section 1103(a) of the Public
Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. §1101 et seq., would not
preclude you from becoming a majority owner of a publishing company subject to the
restrictions and qualifications as noted above. In the event the publishing company would
have matter(s) pending before the Office of Administration, you would have a conflict as to
such matter(s), could not participate, and would be required to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act 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.
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