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