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HomeMy WebLinkAbout94-622 HemingSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 3, 1994 Todd W. Homing Box 275 New Florence, PA 15944 94 -622 Re: Conflict, Public Official /Employee, Private Employment or Business, County Airport Manager, Services to Engineer Who Contracts With Airport Authority. Dear Mr. Heming: This responds to your letter of September 28, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the manager of a county airport is prohibited or restricted by the Public Official and Employee Ethics Law from being employed by or providing services in a private capacity to an engineer who contracts with the airport authority. Facts: As the manager of an airport for a county government, you request an advisory from the State Ethics Commission. You report directly to an airport authority of which you are not a voting member. The authority receives state and federal grants to engineer and construct capital improvement projects on the airport. You pose the following questions: 1. Whether it is a conflict of interest for the contracted engineer to the airport authority to purchase services from you during hours for which you are not working for the county? 2. Whether the projects must be unrelated to your present employer, i.e., whether your services could only be provided for projects outside of those contracted by the airport authority. Based upon all of the above, you request an advisory from the State Ethics Commission. 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 Heming, Todd W., 94 -622 November 3, 1994 Page 2 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. 65407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that your inquiry may only be addressed with regard to your own prospective conduct. Questions as to the conduct of the engineer who contracts with the airport authority would constitute a third party inquiry which the Commission may not address within the statutory parameters of the Ethics Law, 65 P.S. § §407 (10),(11). As the manager of an airport for a county government, you are a public official /public employee as that term is defined under the Ethics Law, and hence you are 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 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. Herring, Todd W., 94 -622 November 3, 1994 Page 3 "Authority of office or employment." The actual power provided by laov, 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 been 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 89 -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. Thus, a public official /employee could not perform private business using governmental facilities or. personnel. In particular, the 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 private employer or business has a matter pending before the governmental body or if the public official /public employee 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 would be necessary for the public official /public employee to be removed from that process. Herring, Todd W., 94 -622 November 3, 1994 Page 4 In such cases as noted above, Section 3(j) of the Ethics Law would require not only that the public official /public employee 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. Having set forth the above principles which apply generally to questions of private employment /business activities of a public official /public employee, your specific inquiries will now be addressed with respect to your own prospective conduct. Your first "question was whether . it would be a conflict of interest for the engineer who contracts with the airport authority for capital improvement projects to purchase services from you during your hours for which you are not working for the county, As noted above, this inquiry may be addressed with regard to your own prospective conduct. Thus, the question is whether it would be a conflict of interest for you to provide services to the aforesaid engineer on your own time. Generally speaking, the Ethics Law would restrict you from working for the said engineer on your own time subject to the restrictions which apply to Section 3(a) as set forth above. Thus, for example, you could not use the authority of your position as the airport manager or any confidential information received by holding your said position to advance your prospects for such private employment or for the private pecuniary benefit of yourself and /or the engineer. There would be concerns as to your involvement in projects related to the airport authority. These concerns arise not only under the Ethics Law but also under the Municipality Authorities Act of 1945. First, with regard to the Ethics Law, there is a great potential for a conflict of interest should you work in your private capacity on airport authority projects. In any given instance, the existence of a conflict of interest would hinge upon whether you would use the authority of your public position for a Heming, Todd W., 94 -622 November 3, 1994 Page 5 private pecuniary benefit for yourself or for the engineer who would be employing your services. For example, if in your role as airport manager, you would be in a position to oversee those contracts, an obvious conflict of interest would exist if you had worked on them in a private capacity on your own time. See, Miller, Opinion 89 -024. It is strongly recommended that as such projects involving the airport authority arise, you seek further advice from this Commission, providing the material facts as to your involvement with those projects in both your public and private capacities. Furthermore, although the State Ethics Commission does not have the express statutory jurisdiction to interpret the Municipality Authorities Act, it is noted that said Act provides as follows: 43 P.S. 5312(D). I?, No member of the Authority or officer or employee thereof shall either directly or indirectly be a party to or be in any manner interested in any contract or agreement with the Authority for any matter, cause or thing whatsoever" by reason whereof any liability or indebtedness shall in any way be created against such Authority. If any contract or agreement shall be made in violation of the provisions of this section the same shall be null and void and no action shall be maintained thereon against such Authority. It is strongly recommended that you obtain the advice of legal gounsel as to the applicability of the Municipality Authorities Act of 1945 to your proposed conduct. 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 County Code and /or the Municipality Authorities Act of 1945, although it has been recommended that you seek the advice of legal counsel with regard to the applicability of the Municipality Authorities Act to your proposed conduct. CQpclusion: As manager of an airport for a county government, you are a public official /public employee subject to the provisions of the Ethiask L,aw, Section 3 (a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted. above. In the event that Heming, Todd W., 94 -622 November 3, 1994 Page 6 the employer /business would have matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above would have to be satisfied. Although Section 3(a) of the Ethics Law would generally not prohibit your proposed services to an engineer who contracts with the airport authority, serious concerns have been noted as to whether Section 3(a) would permit your involvement in projects related to the airport authority. It is recommended that as such instances arise, you seek further advice from this Commission. It has further been strongly recommended that you obtain the advice of legal counsel as to the applicability of the Municipality Authorities Act of 1945 to your proposed conduct. 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 hap 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 such. Finally, if you disagree sritb 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 COMMI SSiOf . .Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days pf the date of this Advice pursuant to 51 Pa. Code 513.3 (h) . The appeal may be received at the Commission by hand delivery, United .gtates mail, delivery service, or by FAX transmission (7/7 Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. 171 cerely, Vincent J. Dopko Chief Counsel as