Loading...
HomeMy WebLinkAbout02-584 MillerJohn C. Miller, Jr., P.E., MBA RS d PUC Bureau of CEEP 2" Floor SW Keystone Building Harrisburg, PA 17105 -3265 Dear Mr. Miller: ADVICE OF COUNSEL August 6, 2002 02 -584 Re: Conflict; Public Official /Public Employee; Utility Energy and Conservation Analyst 111; Bureau of Conservation, Economics and Energy Planning; Economics Division; Public Utility Commission; Private Employment or Business; State or Federal Research Grants. This responds to your letter of July 3, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act "), 65 1ra.C.S. §1101 et seq., prohibits a Utility Energy and Conservation Analyst 111 for the Bureau of Conservation, Economics and Energy Planning ( "CEEP ") of the Public Utility Commission ( "PUC ") from working as a self - employed energy consultant in a private capacity in addition to public service, or from applying for and receiving state or federal grants to perform research on energy use in rural Pennsylvania. Facts: You are currently employed as a Utility Energy and Conservation Analyst 111 for the Bureau of Conservation, Economics and Energy Planning ( "CEEP "), Economics Division, of the Public Utility Commission ( "PUC "). You have submitted a copy of your job description, which is incorporated herein by reference. You have submitted facts which may be fairly summarized as follows. Your work for the PUC revolves around providing technical and economic support and analyses to the PUC. Per your job description, your duties include, inter alia, the following: acting as Chairman of, and PUC's lead person on, various ad hoc sou committees formed by Pennsylvania's electric and natural gas industries; acting as a technical and economic consultant to the PUC on various electric matters; performing advanced level professional work in economics and energy planning, development, energy forecasting, rates and rate structure analysis, marginal cost analysis, and emergency management in the Economics and Energy Planning Division within the Bureau of CEEP; acting as the Chairman's delegate to the Pennsylvania Energy Development Authority; designing research project methodologies and assigning specialized segments of projects to lower level analysts; acting as a PUC representative to the Pennsylvania Emergency Management Agency during energy crises; and preparing analyses and comments on prospective legislation at the state and federal level. Miller 02 -584 August 6, 2002 Page 2 You have submitted to the PUC a Supplementary Employment Request Form. A copy of your Supplementary Employment Request Form was enclosed with your request for an advisory from the State Ethics Commission. Per your Supplementary Employment Request Form, you are seeking approval from the PUC to work as a self - employed energy consultant commencing in the Summer of 2002. Noting that a prior advisory was issued to you in 1985 (presumably Miller, Advice 85 -530), you have posed the following questions: 1. Whether, pursuant to the Ethics Act, you may engage in the proposed supplementary private work as a self - employed energy consultant; and 2. Whether the Ethics Act would preclude you from seeking grants from state or federal agencies to perform research on sustainable and renewable energy use on farms and by rural residential customers. 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 a Utility Energy and Conservation Analyst III for the Bureau of CEEP, Economics Division, of the PUC, you are a "public employee" subject to the provisions of the Ethics Act. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Sections 1103(a) and 0) of the Ethics Act provide as follows: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Miller 02 -584 August 6, 2002 Page 3 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(a), (j). 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, 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(f) of the Ethics Act, which pertains to contracting, provides as follows: (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is Miller 02 -584 August 6, 2002 Page 4 associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). The following terms that pertain to Section 1103(f) are defined in the Ethics Act as follows: "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest 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 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 in his private capacity, Gorman, Order 1041, or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. If the private employer or business with which the public official /public employee is associated or a private client would have a matter pending before the governmental Miller 02 -584 August 6, 2002 Page 5 body, the public official /public employee would have a conflict of interest as to such matter. Miller, supra; Kannebecker, supra. 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. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 11030) set forth above. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Having established the above general principles, your first question shall be addressed. You are advised that the Ethics Act would not prohibit you from engaging in the proposed supplementary private work as a self - employed energy consultant, as long as you would do so within the parameters of Sections 1103(a) and 1103(j) as set forth above. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest as to matters that would come before you in your public capacity as a Utility Energy and Conservation Analyst III for the PUC that would pertain to you, your consulting business, or your business client(s). See, Miller, supra; Kannebecker, supra. As noted above, in each instance of a conflict, you wed be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. With regard to your second inquiry, the submitted facts do not indicate whether the PUC would be involved with the administration of a grant program in which you would seek to participate. Accordingly, this Advice is necessarily limited to providing the following general guidance. If the PUC would not be involved with the administration of a grant program in which you would seek to participate, the Ethics Act would not prohibit you from seeking federal or state grants to fund your research conditioned upon the assumptions that there would be no improper understanding under Section 1103(b) or 1103(c) of the Ethics Act and no use of the authority of your public position or confidential information received by being in your public position for a prohibited private pecuniary benefit. To the extent the PUC would be involved with the administration of a grant program in which you would seek to participate, you are advised as follows. The stated purpose of the Ethics Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of or candidates for public office do not conflict with the public trust. 65 Pa.C.S. §1101. Section 1103(a) of the Ethics Act in particular prohibits a public official /public employee 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 Commission recognizes that public concern and criticism may arise if a public official or public employee who serves a governmental body receives benefits under the very program which that governmental body administers. On the other hand, as a general rule, the Ethics Act was not enacted nor should it be interpreted to preclude public officials or public employees from participating in programs which might otherwise be available to them as citizens. Wolff, Opinion 89 -030; Woodrinq, Opinion 90 -001. In order to ensure that a public official or public employee does not have a conflict of interest when he, as a citizen, seeks to participate in a loan or grant program administered by the governmental body which he serves, he must: Miller 02 -584 August 6, 2002 Page 6 play no role in establishing the criteria under which the program is to operate, particularly with reference to the structure or administration of the program; 2. play no role in establishing or implementing the criteria by which selections for program participation are to be made; 3. play no role in the process of selecting and reviewing applicants or in awarding grants or funds; 4. use no confidential information acquired during the holding of public office or public employment to apply for or to obtain such funds, grants, etc., and 5. abstain and satisfy the disclosure requirements of Section 1103 (j) above in cases where the public official /public employee is associated with administering the loan or grant program. The abstention and disclosure would be required not only as to his own application, but also as to similarly situated individuals with whom t i Dublic official /public employee might be competing for available funds. As for Section 1103(f), it is noted that a grant program may require participants to enter into contracts and /or subcontracts. If you, as a participant in a grant program administered by the PUC, would enter into a contract with the PUC, the governmental body with which you are associated, or would enter into a subcontract with any "person" (as defined above) who has a contract with the said governmental body, Section 1103(f) of the Ethics Act would impose the following requirements if the contract or sub - contract would be valued at $500.00 or more: 1. prior public notice of the contract possibility; 2. public disclosure of applications and contracts considered; 3. public disclosure of the award of the contracts; and 4. no supervisory or overall responsibility for the implementation or administration of the contract or sub - contract by the public official /employee. As long as you would observe the restrictions of Sections 1103(a) and 1103(f), you would not be precluded from applying for and participating in the benefits associated with a grant program administered by the PUC. This Advice is limited to addressing the applicability of Sections 1103(a), 1103(f), and 1103(j) 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 shall offer to a public official/employee 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. 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 the Code of Federal Regulations or the Governor's Code of Conduct. Miller 02 -584 August 6, 2002 Page 7 Conclusion: As a Utility Energy and Conservation Analyst III for the Bureau of Conservation, Economics and Energy Planning ( "CEEP "), Economics Division, Public Utility Commission PUC "), you are a public employee subject to the provisions of the Ethics Act. The Ethics Act would not prohibit you from engaging in proposed supplementary private work as a self - employed energy consultant as long as you would do so within the parameters of Sections 1103(a) and 1103(j) as set forth above. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest as to matters that would come before you in your public capacity that would pertain to you, your consulting business, or your business client(s). In each instance of a conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. If the PUC would not be involved with the administration of a grant program in which you would seek to participate, the Ethics Act would not prohibit you from seeking federal or state grants to fund your research conditioned upon the assumptions that there would be no improper understanding under Section 1103(b) or 1103(c) of the Ethics Act and no use of the authority of your public position or confidential information received by being in your public position for a prohibited private pecuniary benefit. To the extent the PUC would be involved with the administration of a grant program in which you would seek to participate, Section 1103(a) of the Ethics Act would not preclude you from applying for such grant provided you played no role in establishing the criteria under which the program would operate, played no role in implementing the criteria for selecting applicants, played no role in selecting or reviewing applicants, used no confidential information received by being in your public position, and finally had no involvement with the administration of the program. The requirements of Section 1103(f) of the Ethics Act noted above, to the extent applicable, must be observed. 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