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HomeMy WebLinkAbout03-593 ConfidentialADVICE OF COUNSEL October 1, 2003 03 -593 Re: Conflict; Public Official /Public Employee; A; B; Private Employment or Business; Non - Profit Organization. This responds to your letters of August 11 and 27, 2003, by which you requested confidential advice from the State Ethics Commission. Issue: Whether a Commonwealth employee is prohibited or restricted by the PTO ic Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., from working with, being employed by or associated with a non - profit organization in a private capacity in addition to public service when the non - profit organization is currently under contract with the Commonwealth and the Commonwealth employee is responsible for monitoring the services rendered by the non - profit organization. Facts: You are currently employed as an A for B. You have submitted a job ddecription, which is incorporated herein by reference. B has entered into an interagency agreement with the C, a non - profit organization that provides D services for Commonwealth agencies and other non - profit groups. Your role in relation to C has been to monitor the E rendered under the interagency agreement. You state that you do not sign any contracts. You further state that you are not directly involved with payments to F. You have been offered the opportunity to teach G on a part -time basis with C after normal working hours, and on weekends and evenings for H professionals. You hold a Certification in I from the J, which allows you to teach the profession. The curriculum you would be developing and teaching would include K. As compensation for the services you would render, you would receive a lump sum payment with no benefits as per a contractual agreement. You opine that the services provided by C to B would be unrelated to the curriculum that you would be teaching and developing. However, you seek an advisory to confirm that your prospective conduct would not transgress the Ethics Act. Discussion: It is initially noted that pursuant to Sections 1107(10) and (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 Confidential Advice 03 -593 October 1, 2003 Page 2 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an A for B, you are a public employee as that term is defined under 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, stock company, receivership, trust or any legal entity organized for profit. "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. 65 Pa.C.S. §1102. 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 Confidential Advice 03 -593 October 1, 2003 Page 3 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 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. If the private employer or business with which the public official /public employee is associated or a private client would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, supra; Kannebecker, supra. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 11030) set forth above. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Having established the above general principles, your specific inquiry shall now be addressed. As a general rule, Section 1103(a) of the Ethics Act would not prohibit you from teaching G on a part -time basis with C subject to the above restrictions and conditioned upon the assumptions that there would be no improper understandings under Sections Confidential Advice 03 -593 October 1, 2003 Page 4 1103(b) and 1103(c), and you would not be using the authority of your position as an A for B or confidential information to obtain or perform such work. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your public capacity as to matters before you involving C or C's client(s). See, Miller supra; Kannebecker, supra. You would specifically have a conflict of interest as to monitoring the E rendered by C to B. As noted above, in each instance of a conflict, you would be required to abstain from participation and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The existence of a conflict would generally preclude a public official /public employee from delegating his authority to a subordinate. See, Confidential Opinion, 02- 004 However, where there would be a pre - existing mechanism in place for the delegation of a public official /public employee's authority in the event of a conflict, the public official /public employee would not run afoul of Section 1103(a) in that there would be no use of authority of office. The submitted facts do not indicate whether there is a pre - existing mechanism in place for delegation of your authority as an A in the event of a conflict. Assuming there is no pre - existing mechanism in place specifying how and by whom your authority is to be exercised in the event of a conflict, your delegation of such authority to a subordinate would itself be a use of authority of office contrary to Section 1103(a) of the Ethics Act. Confidential Opinion, 02 -004. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. 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 L. Conclusion: As an A for B, 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. As a general rule, Section 1103(a) of the Ethics Act would not prohibit you from teaching G on a part -time basis with C subject to the above restrictions and conditioned upon the assumptions that there would be no improper understandings under Sections 1103(b) and 1103(c), and you would not be using the authority of your position as an A for B or confidential information to obtain or perform such work. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your public capacity as to matters before you involving C or C's client(s). You would specifically have a conflict of interest as to monitoring the E rendered by C to B. In each instance of a conflict, you would be required to abstain from participation and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The existence of a conflict would generally preclude a public official /public employee from delegating his authority to a subordinate. However, where there would be a pre - existing mechanism in place for the delegation of a public official /public employee's authority in the event of a conflict, the public official /public employee would not run afoul of Section 1103(a) in that there would be no use of authority of office. Confidential Advice 03 -593 October 1, 2003 Page 5 The submitted facts do not indicate whether there is a pre - existing mechanism in place for delegation of your authority as an A in the event of a conflict. Assuming there is no pre - existing mechanism in place specifying how and by whom your authority is to be exercised in the event of a conflict, your delegation of such authority to a subordinate would itself be a use of authority of office contrary to Section 1103(a) of the Ethics Act. 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