HomeMy WebLinkAbout92-578Dear Mr. Bowman:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 12, 1992
Mr. Barry L. Bowman 92-578
R.D. 2, Box 280
Duncansville, PA 16635
Re: Conflict; Public Official /Employee; Real Estate Appraiser II;
PennDOT, Right of Way; Use of Authority of Office or
Confidential Information; Private Employment or Business;
Business with which Associated; Business Transactions with
Former PennDOT Claimants and their Relatives.
This responds to your letter of April 2, 1992, in which you
requested advice from the State Ethics Commission.
Issuer Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a Real Estate
Appraiser II for the Commonwealth of Pennsylvania, Department of
Transportation, with regard to private business transactions with
former claimants of PennDOT and /or their relatives.
Facts: Noting that you have been employed with the Commonwealth of
Pennsylvania, Department of Transportation ( "PennDOT ") in District
9 -0 "Right of Way" for 21 years, in which position you have dealt
with hundreds of claimants, you request an advisory from the State
Ethics Commission regarding conducting private business
transactions with former claimants of PennDOT and /or their
relatives.
You note that "after hours" employment was approved both in
the real estate and timber businesses. You acknowledge that it is
your understanding that a conflict of interest would occur if you
would use any employment knowledge for personal gain. You ask
whether it would be a conflict of interest after a claim has been
settled with the Commonwealth, for you to do business with a former
claimant by contacting the claimant or by the claimant contacting
yo, or through contact by a referral or a listing in a newspaper
of an item for sale. Finally, you ask whether such a conflict
would ti let as to the relatives of a former claimant.
Barry L. Bowman
Nay 12, 1992
Page 2
Copies of your job description, job classification
specification and organizational chart for your position with
PennDOT have been obtained PennDOT, all of which documents are
incorporated herein by reference. The incorporated documents
indicate your position as a Real Estate Appraiser I1, which
position involves the appraisal and acquisition of real estate for
public use. Your duties may include, but are not limited to,
making appraisals and determining compensable damages to property
owners from proposed rights -of -way; preparing replacement housing
evaluations to estimate the cost of relocating a displaced family;
appraising alternate real estate for relocation of property owners
to real estate of comparable value or for compensating property
owners in place of relocation; contacting property owners to
discuss their claims; and, upon approval or review, preparing and
tendering offer letters to each such property owner.
'Discussion: As a Real Estate Appraiser 1I for PennDOT, you are a
public employee as that term is defined under the Ethics Law, and
: ::the Regulations of this Commission, see, 65 P.S. S402; 51 Pa. Code
X1.1, and hence, you are subject to the provisions of that law.
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 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.
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 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
Barry L. Bowman
May 12, 1992
Page 3
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 o.£ public -
employment.
"Business with which he is Sssociated."
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 publio'o'fficial %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.
Section 3(j) of the Ethics -Law provides as follows:
Section 3. Restricted activities.
(j) 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 enable tai take « any- action on a matter
Barry L . _ Bowman
May 12, r9#. "`.''
Page 4
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 has abstained shall be permitted to
vote to break the tie .. vote if disclosure is
made as otherwise provided herein.
If a conflict exists, Section - 3(f) 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 applying the above provisions of the Ethics Law to the
circumstances which you have presented, it is initially 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.
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;
Barry L. Bowman
May 12, 1992
Page 5
3. participating in discussions, reviews, or recommendations
on matters which relate to the business /private employer /private
client which may come before the governmental body, Milker, Opinion
89 -024, and in such cases would require abstention from any
participation of any nature whatsoever with disclosure as per the
requirements of Section -'3 (j) of . the Ethics Law set forth above.
Brooks, Opinion 89 -023.
Turning to your specific inquiry, you are advised that Section
3(a) of the, Ethics Law applies to restrict . the conduct of public
officials /public employees in their official capacities. A public
official /public employee has a conflict of interest and is
restricted from participating in his capacity as a public official/
public employee as to matters involving those with whom he has an
existing financial relationship or with whom he could reasonably
and legitimately be anticipated to develop such a financial
relationship after such official action. Sae, Amato, Opinion 89 -
002 at 5 (and authorities - cited therein). The submitted facts
clearly establish that your proposed business transactions would be
anticipated and perhaps even directly pursued by you. You would
therefore have a conflict of interest in matters involving
claimants of PennDOT with whom you have an existing financial
relationship or with whom - you could reasonably and legitimately be
anticipated to develop such a relationship following your official
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 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 a Real Estate Appraiser II for the Commonwealth of
Pennsylvania, Department of Transportation ("PennDOT "),'.you are a
public employee, subject to the provisions of the Ethics Law.
Section 3(a) of the Ethics Law would not preclude you from outside
employment /business activity sub ject to the restrictions and
qualifications, as noted above,. In the event that the employer/
business pr a private client has 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 must be satisfied. You would have -a conflict as
a public employee as to - those with whom you have an existing
financial' relationship oi,,with whom- you could reasonably and
legitimately- be anticipated to develop such a financial
relationship after such official conduct. Sections 3(b) and 3(c)
of the Ethics Law set forth - aboye must be Lastly, the
propriety of the proposed conduct has only been addressed under the
Ethics Law.
Barry L. Bowman
May 12, 1992
Page 6
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 coramitted the acts complained of in reliance
on the Advice given.
such.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may request that the full Commission
review this Advice. A personal appearance before the Commission
will be scheduled and a formal Opinion from the Commission will be
issued. Any such appeal must be in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code S2.12.
Sincerely,
74t6
vincent J. Dopko
Chief Counsel