HomeMy WebLinkAbout03-544 WilhelmBarbara A. Wilhelm
1941 Clarks Valley Road
Dauphin, PA 17108
ADVICE OF COUNSEL
April 28, 2003
03 -544
Re: Conflict; Public Official /Employee; Department of Corrections; Plaintiff; Sexual
Discrimination Case; Pennsylvania Human Relations Commission; Discussing
The Introduction Of New Legislation With State Senator During Non - Working
Hours.
Dear Ms. Wilhelm:
This responds to your letter of March 31, 2003, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a senior
management employee of the Department of Corrections who filed a complaint with the
Pennsylvania Human Relations Commission ( "PHRC ") and prevailed in a sexual
discrimination case against the State Police as to meeting with a State senator during
non - working hours to discuss introducing new legislation to amend the procedures for
filing a complaint with the PHRC.
Facts: You are currently a full -time permanent employee of the Commonwealth,
having been reinstated in a senior management position with the Department of
Corrections.
Recently, you were the plaintiff in a Title VII, Sexual Discrimination case involving
the Pennsylvania State Police. You state that it took approximately two years and six
months from the time that you filed your complaint with the Pennsylvania Human
Relations Commission ( "PHRC ") to when the Federal jury found in your favor.
After prevailing in the United States District Court for the Middle District of
Pennsylvania, you contacted Senator Williams' office to discuss what efforts could be
made to amend the existing laws impacting the procedures for filing a complaint with the
PHRC. You state that you felt that the process could be expedited with the introduction
of new legislation that would benefit victims who would file complaints in the future.
You ask whether under the Ethics Act, you may meet with Senator Williams and
staff during your non - working hours to discuss introducing new legislation that would
Wilhelm, 03 -544
April 28, 2003
Page 2
directly impact the PHRC. You conclude by stating that your actions would not result in
a personal financial benefit to yourself.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(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 senior management employee of the Department of Corrections, you are a
public employee as that term is defined in the Ethics Act, and hence you are subject to
the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
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.
65 Pa.C.S. § 1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 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.
Wilhelm, 03 -544
April 28, 2003
Page 3
Section 1103(j) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(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
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(j).
In each instance of a conflict, Section 1103(j) 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 the event that the required abstention results in the inability of the
governmental body to take action because a majority is unattainable due to the
abstention(s) from conflict under the Ethics Act, then voting is permissible provided the
disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
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.
In response to your inquiry, based upon the facts which you have submitted,
there would not appear to be any conflict of interest as to meeting with Senator Williams
Wilhelm, 03 -544
April 28, 2003
Page 4
and staff during your non - working hours to discuss introducing new legislation that
would directly impact the Pennsylvania Human Relations Commission because you
would not be using the authority of your public position with the Department of
Corrections or confidential information received by holding such public position for the
private pecuniary benefit of yourself, a member of your immediate family, or a business
with which you or a member of your immediate family is associated.
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 Governor's Code of Conduct.
Conclusion: As a senior management employee of the Department of
Corrections, you are a public employee subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the
facts which you have submitted, there would not appear to be any conflict of interest as
to meeting with Senator Williams and staff during your non - working hours to discuss
introducing new legislation that would directly impact the Pennsylvania Human
Relations Commission because you would not be using the authority of your public
position with the Department of Corrections or confidential information received by
holding such public position for the private pecuniary benefit of yourself, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated.
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