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HomeMy WebLinkAbout00-624 CalnanJohn F. Calnan 29 East Rhodes Avenue West Chester, PA 19382 -5574 Dear Mr. Calnan: ADVICE OF COUNSEL November 9, 2000 00 -624 Re: Conflict; Public Official /Employee; Manager of Suburban Route and Service Planning; SEPTA; Private Employment or Business; Private Consultant; Transportation Management Association of Chester County. This responds to your letter of October 12, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon the Manager of Suburban Route and Service Planning for SEPTA with regard to providing private consulting services to a transportation management association, where in the latter capacity, he would provide assistance in analyzing and planning transportation options for a private entity. Facts: As the Manager of Suburban Route and Service Planning for the Southeastern Pennsylvania Transportation Authority ( "SEPTA "), you seek an advisory from the State Ethics Commission as to whether you may provide certain private consulting services in addition to your public service. You have submitted the following facts. You have recently been offered the opportunity to work as a part -time Consultant for the Transportation Management Association of Chester County ( "TMA "). As a Consultant to TMA, you would provide assistance in analyzing and planning transportation options for "The Vanguard Group" ( "Vanguard "), Chester County's largest employer. Vanguard currently has 8,500 employees in 22 facilities but has prepared design plans for building a new facility in Uwchlan Township that will house approximately 8,500 to 10,000 additional employees. You state that the future facility will pose several major long and short term transportation and employment issues which Vanguard must address. Calnan, 00 -624 November 9, 2000 Page 2 As a Consultant to TMA, you would be involved in a planning endeavor that would entail the development of a comprehensive plan in which current employee transportation programs would be evaluated, and long and short term cost - effective improvements would be proposed and coordinated with the management of Vanguard. You state that you would perform the following activities in the course of your planning duties: 1. Inventory existing conditions and review current transportation systems; 2. Assess conditions in Uwchlan Township; 3. Survey Vanguard employees and inventory employee travel habits; 4. Compare employee data with long and short range transportation plans from PennDOT, Delaware Valley Regional Planning Commission, Chester County Planning Commission, and SEPTA; 5. Review and evaluate site plans with regard to ingress and egress; 6. Develop alternative transportation proposals such as expanding SEPTA transit services, creating private commuter shuttles, vanpools, flexible work schedules, compressed work week, job sharing, telecommuting and other means of reducing congestion due to single occupancy automobiles; and 7. Recommend a support system for filling employee transportation needs. Based upon the foregoing facts, you ask whether you would have a conflict as to performing the above proposed consulting services for TMA. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(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 the Manager of Suburban Route and Service Planning for SEPTA, 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 Calnan, 00 -624 November 9, 2000 Page 3 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 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. Calnan, 00 -624 November 9, 2000 Page 4 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 each instance of a conflict, Section 1103(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. 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 (see also the Public Transportation Law, 74 Pa.C.S. §1723(c)). 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 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 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 must abstain from participation in his public capacity and observe the disclosure requirements of Section 1103(j) as set forth above. The abstention requirement is not limited merely to voting, but extends to any use of authority of office. In Juliante, Order 809, the Commission recognized that the use of authority of office as defined in the Ethics Act includes, for example, discussing, conferring with others, and lobbying for a particular result. Under the facts which you have submitted, the Ethics Act would not prohibit you from serving as a part -time private Consultant for TMA. However, you could not use the authority of your public position at SEPTA, or any confidential information received by being in your position at SEPTA, for the private pecuniary benefit of yourself, your consulting business, TMA, or Vanguard. You specifically could not use confidential information received by being in your position at SEPTA to perform the proposed Calnan, 00 -624 November 9, 2000 Page 5 analysis /planning work relating to Vanguard. Furthermore, in your position at SEPTA, you could not participate in matter(s) that would financially impact TMA or Vanguard. You would have a conflict of interest in such matters, and would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) set forth above. 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. Conclusion: As the Manager of Suburban Route and Service Planning for the Southeastern Pennsylvania Transportation Authority ( "SEPTA "), 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. Under the submitted facts, the Ethics Act would not prohibit you from serving as a part -time private Consultant for the Transportation Management Association of Chester County ( "TMA "), in which capacity you would provide assistance in analyzing and planning transportation options for "The Vanguard Group" ( "Vanguard "). However, you could not use the authority of your public position at SEPTA, or any confidential information received by being in your position at SEPTA, for the private pecuniary benefit of yourself, your consulting business, TMA, or Vanguard. You specifically could not use confidential information received by being in your position at SEPTA to perform proposed analysis /planning work relating to Vanguard. Furthermore, in your position at SEPTA, you could not participate in matter(s) that would financially impact TMA or Vanguard. You would have a conflict of interest in such matters, and would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) 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 §13.20. 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