HomeMy WebLinkAbout04-575 StephensGlenn W. Stephens
989 Kings Way West
Hummelstown, PA 17036 -8909
ADVICE OF COUNSEL
July 27, 2004
04 -575
Re: Conflict; Public Employee; a Program Analyst 3; Pennsylvania Department of
Environmental Protection; Office of Energy and Technology Development;
Private Employment or Business.
Dear Mr. Stephens:
This responds to your letter of June 24, 2004, by which you requested advice
from the State Ethics Commission.
Issue: Whether a Program Analyst 3 for the Pennsylvania Department of
E nvironmental Protection, Office of Energy and Technology Development is prohibited
or restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 et seq from working with, being employed by or associated with a business/
person in a private capacity in addition to public service.
Facts: You are currently employed as a Program Analyst 3 in the Office of
▪ y and Technology Development ( "OETD ") for the Pennsylvania Department of
Environmental Protection ( "DEP'). You have enclosed copies of your Job description
and organizational chart, which documents are incorporated herein by reference.
OETD desires to have a qualified Environmental Management System ( "EMS ")
Lead Auditor on its staff to perform EMS audits for municipalities, small businesses and
government agencies situated throughout the Commonwealth. OETD has requested
you to obtain certification as an ISO 14001 EMS Lead Auditor as soon as possible.
OETD hopes that your certification will generate opportunities for it to provide third -party
assessments of EMS's for unregistered (non - certified) facilities.
ISO 14001 is an international standard for Environmental Management Systems.
ISO 14001 EMS auditing is solely concerned with whether or not a facility's EMS
conforms to the international standard. You state that an auditor's constant objective is
to find evidence that the EMS conforms to ISO 14001.
In February 2004, OETD sent you for training in ISO 14001 EMS and auditing
standards. On the final day of training, you passed the auditor examination, which
Stephens, 04 -575
July 27, 2004
Page 2
satisfied your training requirement to apply to the Registrar Accreditation Board ( "RAB ")
for certification as an EMS Provisional Auditor.
Upon completion of four audits in the private sector, you will be eligible to apply
for certification as an EMS Auditor. Upon completion of three more audits in the private
sector as an EMS Auditor — each performed in the capacity of a lead auditor — you will
be eligible to apply for certification as an EMS Lead Auditor. You state that it will be
impossible for you to become certified as an EMS Lead Auditor without engaging in
private - sector EMS auditing opportunities.
You state that your proposed supplementary employment would be unrelated to
your work for OETD. Further, your auditing assignments would arise totally independent
of your relationship to the Commonwealth. Once certified, your name would appear on
the RAB's list of available auditors. Your auditing assignments would only arise from
that list or through opportunities arising from your auditing experience. You would
therefore exclusively limit any auditing endeavors arising out of your contemplated
supplementary employment to facilities situated outside of the Commonwealth of
Pennsylvania. For this reason, you state that you can foresee no instance in which your
proposed supplementary employment would entail the use of any information from
OETD. To the extent you might need to consult information from OETD, such information
would be limited to that which is obtainable from reviewing a public document or making
inquiry to a publicly available source of information.
You state that your contemplated supplementary employment would occur on
your own time and would not conflict with your hours of work for OETD. Within the
boundaries of the Commonwealth, EMS auditing would only be as assigned by OETD.
You state that you have consulted with OETD to determine the appropriate
procedures for pursuing supplementary employment approval once you complete EMS
Provisional Auditor certification. OETD's legal counsel recommended that you take the
following steps: 1) request an advisory from the Ethics Commission; 2) submit a
supplementary employment request to DEP; and 3) obtain policy guidelines from your
Deputy Secretary. You state that your request is submitted as recommended by OETD
preliminary to your request for supplementary employment approval.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the
icE�i sAc765 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 Procram Analyst 3 in the Office of Energy and Technology Development
( "OETD ") for DE'', 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).
Stephens, 04 -575
July 27, 2004
Page 3
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
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
Stephens, 04 -575
July 27, 2004
Page 4
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; Rembold, Order
1303; Wilcox, Order 1306), 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.
Under the facts which you have submitted, Section 1103(a) of the Ethics Act would
not preclude you from outside employment /business activity subject to the restrictions
and qualifications as noted above.
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
Stephens, 04 -575
July 27, 2004
Page 5
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the Governor's Code of Conduct.
Conclusion: As a Program Analyst 3 in the Office of Energy and Technology
Develo ment ( "OETD ") for the Pennsylvania Department of Environmental Protection
('DEP ")p you are a public employee subject to the provisions of the Ethics Act. Section
1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101
et seq., would not preclude you from outside employment /business activity subject to
the restrictions and qualifications as noted above. In the event that the employer/
business would have matter(s) pending before your governmental body, then you would
be required to abstain and to satisfy the disclosure requirements of Section 1103(j) of
the Ethics Act set forth above. 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