HomeMy WebLinkAbout05-504 ConfidentialADVICE OF COUNSEL
January 14, 2005
05 -504
Re: Conflict; Prohibited Activities; State Ethics Commission Employee; [Job Title]; 65
Pa.C.S. § 1106(d)(5); Recreation Facilit y Owned by Political Subdivision;
Recreation Facility A; Volunteer Services; [Nature of Services]; Meal Voucher;
Facility Guest Pass.
This responds to your letters of January 3, 2005, and January 4, 2005, by which
you requested confidential advice from the State Ethics Commission.
Issue: Whether pursuant to the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. § 1101 et seq., a State Ethics Commission employee, specifically a
[Job Title], would be permitted to provide volunteer services at a recreation facility
owned by a political subdivision, either with or without the acceptance of the meal
voucher and facility guest pass ordinarily provided by the recreation facility to such
volunteers.
Facts: You are a State Ethics Commission employee, specifically, a [Job Title].
oou rerequest an advisory from the State Ethics Commission based upon submitted facts
that may be fairly summarized as follows.
You provide volunteer services, specifically, [ nature of services], at Recreation
Facility A, a [nature of facility] that is owned by Political Subdivision B. You note that
you are a member of Organization C, a non - profit organization consisting of volunteer
members who provide such services throughout the United States and the world.
You state that you provide such services at Recreation Facility A after work hours
and /or on weekends. In providing such services, you are supervised by individuals in a
chain of command that ultimately leads to the facility management. However, you and
the other volunteer members of Organization C at Recreation Facility A do not report to
or take direction from the facility management.
The facility management consists of paid employees of Political Subdivision B.
As a result of providing the aforesaid volunteer services, you would ordinarily
receive from Recreation Facility A a meal voucher valued at $6.00 (once during your
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January 14, 2005
Page 2
period of duty) and a facility guest pass to be used at your discretion. As a volunteer
member of NSP, you would not receive a Form 1099 for the value of such items.
You pose the following specific inquiries:
(1) Whether your receipt of the meal voucher and facility guest pass would
violate the Ethics Act and would therefore be prohibited; and
(2) Whether you could provide the aforesaid volunteer [nature of services] at
Recreation Facility A -- despite the fact that the facility is owned by
Political Subdivision B -- if you would decline the meal voucher and facility
guest pass.
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 that the requestor has submitted. In issuing the advisory based upon the
facts that the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that 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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. To
the extent you have inquired as to conduct that has already occurred, such past conduct
may not be addressed in the context of an advisory opinion. However, to the extent you
have inquired as to future conduct, your inquiry may and shall be addressed.
As a State Ethics Commission employee, specifically, a [Job Title], you are a
"public employee" as that term is defined in the Ethics Act, and hence you are subject to
the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted Activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(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
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January 14, 2005
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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(a), (j).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined 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.
Section 1106(d) of the Ethics Act imposes additional prohibitions upon State
Ethics Commission members and employees:
§ 1106. State Ethics Commission
(d) Prohibited activities. —No individual while a member
or employee of the commission shall:
(1) hold or campaign for any other public office;
(2) hold office in any political party or political
committee;
(3) actively participate in or contribute to any political
campaign;
(4) directly or indirectly attempt to influence any
decision by a governmental body, other than a court
of law or as a representative of the commission on a
matter within the jurisdiction of the commission; or
(5) be employed by the Commonwealth or a political
subdivision in any other capacity, whether or not for
compensation.
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January 14, 2005
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65 Pa.C.S. § 1106(d) (Emphasis added).
The Ethics Act defines the term "political subdivision" as follows:
§ 1102. Definitions
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational
school, county institution district, and any authority, entity or
body organized by the aforementioned.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission provide that the following
definition of the term "employed by" shall apply to Section 1106(d)(5) (formerly Section
6(d)(5)) of the Ethics Act:
§11.1. Definitions
Employed by —Used in any capacity, with or without
compensation. This definition is only used in the context of
section 6(d)(5) of the act (65 P.S. § 406(d)(5)).
51 Pa. Code § 11.1.
Based upon the above, Section 1106(d)(5) of the Ethics Act prohibits State
Ethics Commission members and employees from being used by the Commonwealth or
a political subdivision in any other capacity, with or without compensation.
In considering your specific inquiries, the fundamental question is whether you
may provide the aforesaid [nature of services] at Recreation Facility A under any
circumstances, given that this particular facility is owned by a political subdivision,
specifically, Political Subdivision B. It is clear that in providing such services, you would
be used by" the facility owner, Political Subdivision B, in a capacity other than your
capacity with the State Ethics Commission. Therefore, regardless of whether you would
decline the meal voucher and facility guest pass, Section 1106(d)(5) of the Ethics Act
would prohibit you from providing [nature of services] at Recreation Facility A during
your tenure as a State Ethics Commission employee.
Based upon the above conclusion, no further analysis is required.
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.
Conclusion: As a State Ethics Commission employee, specifically, a [Job Title],
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. Section 1106(d)(5) of the
Ethics Act would prohibit you from providing [nature of services] at Recreation Facility A
during your tenure as a State Ethics Commission employee, because that facility is
owned by a political subdivision. 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
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January 14, 2005
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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