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HomeMy WebLinkAbout94-561 SchimmelDear Ms. Schimmel: STATE ETHICS COMMISSION 309 FINANCE BUILDING - P.O. BOX 11470 HARRISBURG, PA 17198 -1470 TELEPHONE 1717) 783 -161 0 ADVICE OF COUNSEL April 22, 1994 Judith B. Schimmel City Solicitor City of Harrisburg - Law Bureau Suite 402 The Martin Luther Ring, Jr. City Government Center Harrisburg, PA 17101 94 -561 Re: Conflict, Public Official /Employee,_ City Council Member, Private Eigployment or Business, Work for Business that Obtains Loans from City. This responds to your letter of April 7, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether a City Council Member is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You are the Solicitor for the City of Harrisburg. A City Council Member has asked you to, obtain an advisory regarding whether his work as an independent contractor with a business which received a loan from the City for start-up costs would constitute a violation of the Ethics Law. The City has a Revolving Loan Fund to provide money to qualified new or expanding businesses for "bricks and mortar" capital costs. One of the recipients of these loans, a consulting company, wants this Council Member to provide various services within his expertise. In addition to assisting in the recruitment of personnel and business contacts outside the City, these services include translation of documentation, preparation of marketin} concepts for international projects and private detective services., The agreement specifically provides, however, that none of th services the Council Member is to provide will conflict in any way with his employment or his duties as a Council Member. City Council plays no role in the award or monitoring of the Schimmel, Judith B., 94 -561 April 22, 1994 Page 2 loans. There is a Revolving Loan Committee of private individua1,s, and support staff is provided by the .Mayor's Office of Economic Development. Based upon the above, you request an advisory from the Stiff) Ethics Commission. Discussion: It is initially noted that pursuant to Sections,7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(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 Comtnissioz riot engage in an independent investigation of the facts, it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the materials facts relevant to the inquiry. 65 P.S. §S407(10), (Ilj: Ai advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further noted that your request for advice may only b! addressed with regard to prospective conduct. A reading o Sections 7(10) and 7(11) of the Ethics Law makes it clear r that .an opinion or advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, he Commission may not issue an opinion or advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are, allegations of Ethics Law violations by a person who is subject to the Ethics Specifically, any involvement which the Council Member may have had in assisting. the business with which he will be associated as an independent contractor in obtaining the loan is past conduct and cannot be addressed in this advisory.__ As Member of Council for the City of Harrisburg, the Member 14 a public official as that term is defined under the Ethics Law, and hence -he -is subject to the provisions of that law. 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 Schimmel, Judith B., 94 -561 April 22, 1994 Page 3 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. "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. 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 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 judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, it is noted that Section 3(a) of the Ethics Law does not prohibit public-officials/employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 8 -011. A- public official /employee must exercise caution so that his private business activities do not conflict with his public duties Crisci Opinion 89 -013. • Schimmel, Judith B., 94 -561 April 22, 1994 Page 4 Thus, a public official /employee could not perform private business using governmental facilities or personnel. In, governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business. activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office/ employment for such a prohibited private pecuniary benefit. In the event that the Council Member's private employer or business has a matter pending before his governmental body or if he as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller Opinion 89 -024. In those instances, it will be necessary that the Council Member be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that he abstain from participation but also file a written memorandum to,that effect with the person recording the minutes or his supervisor. In sumMary,.the Ethics Law.would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the. Ethics Law. Brooks Opinion 89 -023 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. Specifically not addressed herein is the applicability of the City Code. Conclusion: As a Member ' 'of 'Council for the City of Harrisburg, the Member is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude the Council Schimmel, Judith B., 94 -561 April 22, 1994 Page 5 Member from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before the Council Member's governmental body., . he could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. 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 fifteen (15) dayssof 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). S ncerely, 1. Vincent Dopko Chief Counsel