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HomeMy WebLinkAbout96-526 RupertSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL Richard D. VanNoy Chief, Division of Conservation Districts Department of Environmental Protection Bureau of Land and Water Conservation Rachel Carson State Office Building PO Box 8555 Harrisburg, PA 17105 -8555 March 6, 1996 96 -526 Re: Conflict, Public Official, Public Employee, Service, Armstong Conservation District, Armstrong County Conservancy Charitable Trust, Allegheny Valley Land Trust, Cowanshannock Creek Watershed Association, Roaring Run Watershed Association, Board Member, Manager. Dear Mr. VanNoy: This responds to your letter of February 16, 1996, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a Conservation District Board Member or Manager from also serving on other nonprofit organizations instituted in part by action of and affiliated with the Conservation District. Facts: You are the Chief of the Division of Conservation Districts with the Department of Environmental Protection (DEP) and are writing on behalf of David Rupert (Rupert), William L. Hileman (Hileman) and Jerry Longwell (Longwell). Rupert is the Manager of the Armstrong Conservation District (ACD) and Hileman and Longwell are both nonpaid directors on the ACD Board. In your letter you provided the following background information. Act 217 of 1945 enabled counties to create conservation districts as subdivisions of State government and created the State Conservation Commission to provide assistance to conservation districts. The ACD has a close working relationship with several legal entities in Armstrong County as to which the ACD participated to varying degrees in their creation. Those entities are: Armstrong County Conservancy Charitable Trust (ACCCT), a nonprofit corporation created by the ACD in 1983; Allegheny Valley Land Trust (AVLT), a nonprofit corporation created by the ACCCT in 1991; Cowanshannock Creek Watershed Association (CCWA), a nonprofit corporation established with assistance from ACD in 1980; and Roaring Run Watershed Association (RRWA), a nonprofit corporation established in 1982 with assistance from ACD. All of these VanNov, 96 -526 March 6, 1996 Page 2 organizations are recognized by the IRS as 501(c)(3) "not for profit" organizations. Both the CCWA and RRWA serve as nominating organizations for directors on the ACD Board and the ACD has requested each to name a representative to serve as an associate director on the ACD Board. Several of the directors of the ACD Board also hold paid or unpaid positions with other entities. These positions are listed below with compensated positions indicated by a "C" and non - compensated positions indicated with "NC." David Rupert Full time manager of ACD since 1982 (C) Trustee of ACCCT since 1990 (NC) Director on AVLT Board since 1991 (NC) William Hileman Director on ACD Board from 1979 through 1995, presently associate director (NC) Trustee of ACCCT since 1983 Director on Board of AVLT since 1991 (NC) Jerry Longwell Associate director on ACD Board from 1967 through 1981, director from 1981 to present (NC) Trustee of ACCCT (NC) Director on Board of AVLT (NC) Director of CCWA (NC) David Beale Associate Director on ACD Board from 1981 through 1992 (NC) Part-time contractor (land surveyor) for ACD Board since 1990 (C) Trustee of ACCCT (NC) Robert Knepshield Non - voting associate director on ACD Board since 1990 (NC) Director on RRWA Board since 1983 (NC) Executive Director of AVLT since 1994 (C) Lee Calarie Trustee of ACCCT (NC) Director on Board of AVLT (NC) Director on Board of CCWA (NC) You state that allegations have been made that the relationships between these persons and organizations is improper and creates conflicts of interest. While you indicate that there is reason to question the motives of those who made these allegations, the members take the allegations seriously and are therefore requesting advice regarding the propriety of their positions and activities under the Ethics Law. You additionally note in your letter that the State Ethics Commission has previously found that conservation district directors are "public employees" as defined in the Ethics Law even though they serve in a voluntary capacity. You have supplied a photocopy of a letter of Rupert dated April 26, 1995. Discussion: As Directors for ACD, Hileman and Longwell are "public officials " as that term is defined in the Ethics Law and hence they are subject to the provisions of the Ethics Law. Rupert, as the ACD Manager, would be a "public employee" under the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. VanNov, 96 -526 March 6, 1996 Page 3 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee any thing of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Prior to addressing the conflict question, a determination must be made as to the precise issue in this case, namely, whether the issue is simultaneous service or governmental service with outside interests as to the non - profit corporations. The resolution of the issue turns upon whether the non - profit corporations are governmental bodies or businesses as those terms are defined under the Ethics Law, 65 P.S. §402. Although the facts presented are insufficient to make that determination, the result below is the same regardless of whether these non - profit corporations are classified as governmental bodies or businesses under the Ethics Law. In either case scenario, there is no per se conflict under the Ethics Law if the ACD Directors /Manager were to simultaneously serve (if non - profit corporations are governmental bodies) or be affiliated with (if non - profit corporations are businesses) these entities. Conflicts arise under the Ethics Law, as noted, where there is a use of authority of office to obtain a private pecuniary benefit for the public official /employee, VanNov 96 -526 March 6, 1996 Page 4 a member of his immediate family or a business with which he or a member of his immediate family is associated. Therefore, as to the question of conflict of interest, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using 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. Unless a situation arises where the use of authority of public office /employment or confidential information received by holding the above public positions would result in such a prohibited private pecuniary benefit, a conflict of interest would not arise. If conflicts would arise, Rupert, Hileman and Longwell would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed with the appropriate person (supervisor or secretary who keeps the minutes). See Section 3(j) of the Ethics Law, 65 P.S. §403(j). If such a situation would arise, additional advice may be sought from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Director and Board Members for the ACD, Rupert, Hileman and Longwell are public officials or employees subject to the provisions of the Ethics Law. They may, consistent with Section 3(a) of the Ethics Law, serve in positions with Conservation District Board Members or with other non - profit organizations which are affiliated with the District, subject to the restrictions, conditions and qualifications set forth above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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 VanNov, 96 -526 March 6, 1996 Page 5 the Commission within thirty (30) days may result in the dismissal of the appeal. S erely, wry V'ncent opko Chief Counsel