HomeMy WebLinkAbout05-576ADVICE OF COUNSEL
September 30, 2005
05 -576
Re: Conflict; Public Official /Employee; Commissioner; A Commission; B; C
Community College; Business With Which Associated.
This responds to your letter of August 31, 2005, 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 Commissioner for
the A Commission with regard to participating in matters involving the C Community
College when the Commissioner is the B at the C Community College.
Facts: You currently serve as a Commissioner for the A Commission. You do not
receive compensation for serving in this position. You do fill out the annual declaration.
In addition, you have a full -time job as the B at the C Community College, a non -
profit educational provider. As a paid full -time D for C Community College, you oversee
E. Prior to being promoted to your current position, you were the F of the G at C
Community College, which led to your appointment on the A Commission.
The A Commission is trying to find a vendor to provide H. You state that the A
Commission had a preference contract with another state agency that had I as a
mission. In the past, the A Commission contracted with J, the I unit of the K; however
that group is no longer funded in state government.
After it became apparent that K would no longer be able to provide the H
programs, the A Commission entered into a Memorandum of Understanding with L, an
arm of the M Department.
C Community College has an existing relationship with L in that C Community
College is a subcontractor that provides N. L has approached C Community College
about being a subcontractor for the H for the A Commission.
You have analyzed a portion of the Governor's Code of Conduct, specifically §
7.152, which you quote as follows:
Representation of interests. No employee, appointee
or official in the Executive Branch of the Commonwealth may
Confidential Advice, 05 -576
September 30, 2005
Page 2
represent or act as agent for a private interest, whether for
compensation or not, in a transaction in which the State has
a direct and substantial interest and which could be
reasonably expected to result in a conflict between a private
interest of the official or employee and his official State
responsibility.
You state that the A Commission will soon be deciding what they will be doing in
selecting a vendor. You further state that the A Commission has not contracted with L
yet.
Based upon the foregoing facts, you pose the following issues:
1. Whether you may remain on the A Commission and excuse yourself from any
decision making involving H conducted by L or C Community College; and
2. Whether you must resign from the A Commission.
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 requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester 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 requester 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 requester has truthfully disclosed all of the material facts.
As a Commissioner for the A Commission, you are a "public official" as that term
is defined in the Ethics Act. In addition, as the B at C Community College, you are a
"public employee" as that term is defined in the Ethics Act. Hence, you are subject to
the provisions of the Ethics 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.
Confidential Advice, 05 -576
September 30, 2005
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.
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.
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, Pavlovic, Opinion 02 -005.
In applying the above provisions of the Ethics Act to the instant matter, pursuant
to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from
using the authority of public office /employment or confidential information received by
Confidential Advice, 05 -576
September 30, 2005
Page 4
holding such a public position for the private pecuniary benefit of the public official/
public employee himself, any member of his immediate family, or a business with which
he or a member of his immediate family is associated.
In the instant matter, L clearly would not be considered a business with which
you are associated. As for C Community College, you are advised as follows.
C Community College would not be considered a "business" as that term is
defined under the Ethics Act for the following reasons. Community colleges were
established under the Community College Act of 1963, Act of August 24, 1963, P.L.
1132, as amended, 24 P.S. § § 5201 -5214 ( "Community College Act'). The Community
College Act was repealed and reenacted under the Public School Code of 1949 at 24
P.S. � 19- 1901 -A to § 19- 1913 -A. Under the Public School Code, a community college
is a public college established and operated by a local sponsor, which may be a school
district or a municipality or a county board of school directors or any combination
thereof. 24 P.S. § 19- 1901 -A; 24 P.S. § 19- 1903 -A. Given that a community college is
established by a political subdivision(s), the necessary conclusion is that a community
college is also a political subdivision and not a "business." See, Snyder, Opinion 05-
002. Accordingly, C Community College would not be considered a business with
which you are associated.
Having established that C Community College is not a business with which you
are associated, as a Commissioner for the A Commission, you would not have a conflict
of interest under Section 1103(a) of the Ethics Act as to participating in matters
involving C Community College. This conclusion is consistent with prior Commission
precedent which has held that a pecuniary benefit flowing solely to a governmental body
does not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act.
See, Confidential Opinion, 01 -005; McCarrier, Opinion 98 -008; Warso, Order 974.
Therefore, in response to your first question, absent any other basis for a conflict
of interest (such as a private pecuniary benefit flowing to yourself), as a Commissioner
for the A Commission, you could participate in matters involving L or C Community
College without transgressing Section 1103(a) of the Ethics Act.
In light of the above, the Ethics Act would not require you to resign from the A
Commission.
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 Commissioner for the A Commission, you are a "public official" as
that term is defined in the Ethics Act. In addition, as the B at C Community College, you
are a "public employee" as that term is defined in the Ethics Act. Hence, you are
subject to the provisions of the Ethics Act. Neither the L nor C Community College
would be considered a business with which you are associated. Therefore, absent any
other basis for a conflict of interest (such as a private pecuniary benefit flowing to
yourself), as a Commissioner for the A Commission, you could participate in matters
involving L or C Community College without transgressing Section 1103(a) of the Ethics
Act. Given the foregoing, the Ethics Act would not require you to resign from the A
Commission. 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 requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
Confidential Advice, 05 -576
September 30, 2005
Page 5
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