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HomeMy WebLinkAbout98-507 FanelliSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 27, 1998 Maribeth Wilt- Seibert & Lisa Jo Fanelli Assistant Counsels 98 -507 Department of Labor & Industry Unemployment Compensation Board of Review Harrisburg, PA 17121 Re: Conflict, Public .Official /Employee, Staff Attorney, Department of Labor & Industry (L &q, Unemployment Compensation Board of Review (UCBR), Volunteer, Allocations Panel Members. Dear Ms. Wilt- Seibert and Ms. Fanelli: This responds to your letter of December 22, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon Staff Attorneys with the Commonwealth of Pennsylvania, Department of Labor and Industry, Unemployment Compensation Board of Review (UCBR) with regard to serving as volunteer Allocations Panel Members for the United Way of the Capital Region. Facts: As Staff Attorneys with the Commonwealth of Pennsylvania, Department of Labor and Industry, Unemployment Compensation Board of Review (UCBR) you seek an advisory from the State Ethics Commission. You have been asked by the United Way of the Capital Region to serve as. volunteer Allocations Panel Members: You ask whether the Ethics Law would restrict you in so serving. You have submitted copies of letters, schedules, and training notices from the United Way of the Capital Region, all of which documents are incorporated herein by reference. According to these documents, Ms. Wilt- Seibert would be a panel Member for "Community Services & Resources Panel 1," hereinafter "Panel 1," and Ms. Fanelli would be a Panel Member for "Community Services & Resources Panel 2/' hereinafter "Panel 2." In 1998, Panel 1 will tour, hear presentations.,, and deliberate as to the following agencies that provide services with United Way dollars: the Jewish Community Wilt- Seibert /Fanelli 98 -507 January 27, 1998 Page 2 Center; the Urban League of Metropolitan Harrisburg; the Volunteer Center; and Dauphin County Pre -Trial Services. In 1998, Panel 2 will tour, hear presentations, and deliberate as to the following agencies that provide services with United Way dollars: Perry Human Services; Upper Dauphin Human Services; Contact Helpline; and RSVP of the Capital Region. The letters assigning you to the aforesaid panels indicate that care was taken to avoid conflicts of interest and that in the event of a conflict of interest, a reassignment can be made. The letters further indicate that panel members are typically rotated every few years. You state that if you would be allowed to participate as Allocations Panel Members, you would continue to be sensitive to the possibility that a conflict of interest could arise in the performance of your duties. You assure that if such would occur, you would promptly screen yourselves out. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Staff Attorneys with the Commonwealth of Pennsylvania, Department of Labor and Industry, Unemployment Compensation Board of Review (UCBR), each of you is a public employee as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law "), and hence each of you is subject to the provisions of that law. See, JJlaunus v. State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988). 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 in the Ethics Law as follows: 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 Wilt- Seibert/Fanelli, 98 -507 January 27, 1998 Page 3 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 bylaw, 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 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities fj) 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 Wilt- Seibert/Fanelli, 98 -507 January 27, 1998 Page 4 has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. In each instance of a conflict, Section 3(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. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Because you have submitted a general inquiry as to conflicts of interest, this advisory must also necessarily be limited to providing general guidance as to conflicts of interest under the Ethics Law. Should a possible conflict arise under specific circumstances, you may of course seek further, specific guidance from the State Ethics Commission. 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. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. Moreover, the definition of the term "business" as set forth in the Ethics Law is very broad. Novak, Opinion No. 91 -009. The fact that a particular organization may be a non - profit organization does not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the preceding forms of entities in the list. See, Soltis -. Soarano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89- 007;.McConahy, Opinion No. 96 -006). It is generally noted that a conflict of interest exists where a public official /public employee, in his official capacity, participates, reviews or passes upon a matter involving a business with which he is associated or its clients. Miller, Opinion No. 89- 024; Kannebecker, Opinion No. 92 -010. In each instance of a conflict of interest, the public official /public employee is required to abstain and to satisfy the disclosure requirements of Section 3(j). As long as you would conduct yourselves in conformity with the requirements of the Ethics Law as set forth above, the Ethics Law would not preclude your serving as Allocations Panel Members for the United Way of the Capital Region. Wilt - Seibert /Fanelli 98 -507 January 27, 1998 Page 5 The Law; the applicability of any other statute, code, addressed 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As Staff Attorneys with the Commonwealth of Pennsylvania, Department of Labor and Industry, Unemployment Compensation Board of Review (UCBR), each of you is a public employee subject to the provisions of the Ethics Law. Subject to the conditions, restrictions, and qualifications set forth above, you may, consistent with the Ethics Law, serve as Allocations Panel Members for the United Way of the Capital Region. Lastly, the propriety of the proposed 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 1. 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. D..ko Chief Counsel