HomeMy WebLinkAbout89-011 PancoeDear Mr. Pancoe:
I. Issue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HA2RISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Helena G. Hughes, Chair
W. Thomas Andrews
G. Sieber Pancoast
Dennis C. Harrington
Michael J. Washo
DATE DECIDED: July 28, 198
DATE MAILED: August 8, 1989
Mr. Stephen J. Pancoe 89 - 011
936 North Second Street
Harrisburg, PA 17120 �..
Re: Conflict, Public Employee, General Assembly .Staff 1►mber,
Contracting, Marketing Partnership
This Opinion is issued in response to your request of June
22, 1989.
Whether a Staff member of the General Assembly under the
Public Official and Employee Ethics Law may form a partnership to
provide consulting services on marketing strategies and tactics
and contract with members of the General Assembly for such
services.
II. Factual Basis for Determination:
You are currently employed by the Pennsylvania House of
Representatives as a staff member -of the Republican Policy
Committee. Although your immediate supervisor is Stephen E.
Dull, Director of Legislative Field Services, you are assigned to
Representative John Perzel of Philadelphia. You have submitted a
brief description of the field services activities along with
the Bipartisan-Management Committee Personnel Survey which
highlight your duties and responsibilities. You and a friend are
currently discussing the feasibility of forming a part-time
marketing partnership which would provide consulting services
regarding marketing strategies and tactics. Your contribution to
the partnership would be outside of the normal working hours for
the House of Representatives. The partnership would assist in
the promotion of a specific business product or person after
developing advertising items such as fliers, tabloids, television
Mr. Stephen J. Pancoe
Page 2
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ads, radio ads and other items after reviewing strategies and
tactics with clients. After noting your personal. relationship
with many members of the House of Representatives with whom. you
have worked for many years, you indicate that in all likelihood
these individuals may inquire at some point about the possibility
of you or your partnership aiding them in developing and
designing political advertising. The services you would provide
would probably be in the form of printed material, radio or
television spots. Because of the possible business relationships
with members of the House, you are requesting an advisory as to
the propriety of this activity under the Ethics Law.
III. Discussion:
As a staff member of the Republican Policy Committee, you
are a "public employee" as that term is defined ender the Public
Official and Employee Ethics Law of June 26, 1989. Accordingly,
you are subject to the provisions of the Ethics Law and the
restrictions there are applicable to you.
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 interests.
The following terms are defined under the Ethics Law:
Section . 2 . Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee or
the authority of his office or employment or
any confidential information received through
his holding office for employment for the
private pecuniary benefit of himself, a
member of his immediate family or a business
with Which he or member of his family is
associated.
"Conflict" or "conflict of interest" does no
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 public
employee, a member or his immediate family or a
business with which he or a member of his
immediate family is associated.
Stephen J. Pancoe
Page 3
"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.
"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. "Contract" 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. 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 or no public official /employee
shall solicit or accept any thing of monetary
value based upon the understanding- that the
vote, official action, or judgement of the
public official /employee would be influenced
thereby.
In addition, Sections 3(b) and '3 tc )' af the Law
provide in part that no person shall offer to a`public
official /employee anything of monetary value or ho public
official /employee shall solicit or accept any of monetary
value based upon the understanding that the vote, - official
action, or judgement of the public official employee would be
influenced thereby.
Finally, contracting restrictions as to public
official$ /employees are provided in Section 3(f) of the Ethics
Law as follows:
Section -.3. Restricted activities.
Mr. Stephen J. Pancoe
Page 4
(f) No public official or public employee or his
spouse or child or any bu§iness 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 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 &
court of competent jurisdiction if the shit is
commenced within 90 days of the making of the contract
or subcontract.
In applying the above provisions of the Ethios Ij to the
instant matter, we note that Section 3(a) of the Efii s Law does
not prohibit public officials /employees from outside business
activities; however, the public official /employee may not use the
authority of office for the advancement of his own personal.
financial gain. Thus, although you are not prohibited under
Section 3(a) of the Ethics taw from entering into a pan+ershtp
which would provide consulting or marketing services, yyoa could
not perform your private business using Commonwealth ac 1ities
or personnel. In particular you could not use the telephone,
postage, staff, equipment- research materials, per onne1 or any
other printed /drafted material as a means, in :whole or part, to
carry out your private business activities. rn addition, you
could not during Commonwealth working hours solicit ntembers of
the General Assembly or others to promote or conduct your .
marketing and consulting business. Subject to the qualifications
noted above, Section 3(a) of the Ethics Law *mid not prohibit
you from entering into the private partnership arrangement.'
As to Sections 3(b), and 3(c) of the Ethics taw, -ou are
reminded of these provisions, not to suggest that there would- be
any wrong doing on your part, but merely for the' o
Y g g Y P . y P�se of Po
supplying a complete response to your inquiry.
As to Section 3(f) of the Ethics Law quoted above ;.this
provision of law has strict requirements whenever a public
official /employee would contract with his governmental body.
Mr. Stephen J. Pancoe
Page 5
The term "governmental body with which a public official or
public employee is or-has been associated" is defined as follows;
Section 2. Definitions.
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within
State government or a political subdivision
by which the public official or employee is
or has been employed or to which the public
official or employee is or has been appointed
or elected and subdivisions and offices
within that governmental body.
Under the above quoted definition, it is clear that the
governmental body with which you are associated would include the
House .a.f,Representatives and the individual Representatives in
their Official capacity as well as committees and sub - committees;
the term would not include re-election Accordingly,
under Section 3(f) of the Ethics Law, any contract that you or
the partnership, the business with which you are associated,
would negotiate with your governmental body would have to be
awarded through an open and public process including prior public
notice and subsequent public disclosure if the contract is
$500 0 or more as per the requirements of section 3(f). In
addition, Section 3(f) also restricts the award of sub -
contracts. Thus, if the governmental body with which you are
associated entered into a contract with a given individual or
entity who in turn sought to enter into a sub- contract with you
or, the business with which you are associated, such contracting'
would also be subject to the requirements of Section 3(f) of the
Ethics Law noted above. Finally, if you or a business with
which you . are associated enters into such a contractor sub -
contract complying with the restrictions.. of Section 3(f),
then you may not have any supervisory or overall responsibility
for the implementation or administration of that contract in your
capacity as public employee. Therefore, in order for contracting
to be allowed under the Ethics Law, strict compliance with the
provisions of Section 3(f) of the Ethics Law as outlined above
must be followed. Unless the restrictions. of Section 3(f) of the
Ethics Law are complied with, such contracting would be
prohibited.
Lastly, 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 Act has not been considered in that they do
not involve an interpretation of the Ethics Law.
Mr. Stephen J.' Pancoe
Page 6
1V. Conclusion:
As a staff member of the Republican Policy Committee, you
are a public employee :: subject to the > provisions,. of :tie Ethics
Law. Under Section 3(a) of the Ethics ,aw, although» you• or a
business: with which you are associated, would not be, precluded
from providing consulting services on marketing strategies. and
tactics to members of the General Assembly, you, .could not use the
authority-of office to obtain such business and suoh_business
activity may not ,be conducted using Commonwealth facilities or
personnel. Under Section 3(f) of the - Ethics Law, any - contract - -or
subcontract between you or a business with ;'which .you are
associated and the governmental body with which you are
associated must be awarded through an openand-public process, if
valued at $500,00 or more, with prior public-,notice and
subsequent public disclosure. In addition, a: contract is
awarded, you may not in your capacity as{public. employee have any
supervisory or-overall responsibility for implementation-or
administration of the contract. Lastly, . the ; propriety of the
proposed conduct has only been addressed under the,Etiics Law.
Pursuant to Section 7(9)(i), this. = Opinion is _ a. cpmplete
defense. in any-enforcement -: proceeding initiated :pby. the
Commission, < and evidence -of good faith-conduct in, anyccivil or
criminal proceeding, providing the requester hasrdi.sOlosed
truthfully all the material facts: and . committed : acts
complained -of-in reliance of the evidence of.::'the^'advice given.
This letter is a public record and will be made available as
such.
Finally, any person may request the Commission to reconsider
its Opinion. The reconsideration_ requests must; be received: at
this Commission within fifteen .days,of; : theuaaili;g date of _this
Opinion. The person-requesting reconsdderation should present a
?detailed explanation setting forth- the-reasons why the Opinion
- requires reconsideration.
By t - Co n* is sio
elena' G.' 'Hughes
Chair