Loading...
HomeMy WebLinkAbout06-541 DenneEdmund Beryl Denne 135 Lenity School Road Belle Vernon, PA 15012 ADVICE OF COUNSEL April 7, 2006 06 -541 Re: Conflict; Public Official /Public Employee . Coke -Oven Technician; Allegheny County Department of Health; Private Employment or Business. Dear Mr. Denne: This responds to your letter of March 13, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether a Coke -Oven Technician for Allegheny County Health e� 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: As a Coke -Oven Technician for the Allegheny County Health Department hU ) you seek an advisory from the State Ethics Commission. You have submitted acts, the material portions of which may be fairly summarized as follows. You work full -time as a Coke -Oven Technician for the Allegheny County Health Department under the supervision of an Air Pollution Control Engineer. You perform your duties at a coke -oven plant where you inspect for emission violations from coke batteries. You have no responsibilities with contractors /contract employees who perform EPA Method 303 at USX, Clairton and Shenango,. Neville sites. Those contractors report directly to your supervisor. You have submitted a copy of your job description which is incorporated by reference herein. You also work part -time with Environmental Research & Technology (ERT), a Pittsburgh company for EPA Method 303. ERT is bidding on the job - to perform Method 303 work at USX, Clairton and Shenango, Neville Island with Allegheny County. If ERT is a successful bidder and if the contract is awarded to them you . state that you will not have any involvement with this work at these two plants. You will not have any input to the company or their employees who are working on this task and your work at these two facilities will be independent of the work to be conducted by the contractor. You will not audit their work or supervise them and ERT will report its work directly to your supervisor. You ask whether you would have a conflict under the Ethics Act by serving in both the position of Coke Oven Process Technician and part -time employee of ERT. 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 he advisory based upon the facts that the requester has submitted, the Commission does not engage in an Denne, 06 -541 April 7, 2006 Page 2 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 Coke Oven Process Technician for the Allegheny County Health Department, 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, joint 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(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public or ppublic employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person Denne, 06 -541 April 7, 2006 Page 3 who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa. C. S. § 1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public Ns employee, s spouse or child, or a business with which he his spouse or child is associated is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more Section 1103(f) requires that an open and public process be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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 wo 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. Denne, 06 -541 April 7, 2006 Page 4 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 obained by being n 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 11 U3(a) would include: Order 1) the pursuit of a private business opportunity in the course of public action, Metrick r 1037; (2) the use of governmental facilities, such as governmental telep i� postage, equipment, research materials, or other p roperty or the use of governmental personnel, to conduct private business activities, reind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to mm is involving the business with which the _public official /public employee is associated in his private capacity (Gorman, Order 141; Rembold Order 1303; Wilcox, Order 13061 or private customer(s) /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 customer /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 torm 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 oyee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j) 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 Wilted 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 with ERT subject to the restrictions and qualifications as noted above. However, you would have a conflict as to matters involving your outside employer, ERT, could not participate in any such matters and would have to comply with the disclosure requirements of Section 1103(a) of the Ethics Act. 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 County Code. Conclusion: As a Coke -Oven Technician for the Allegheny County Department of health ou 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 with ERT subject to the re and qualifications as noted above. You would have a conflict as to matters involving your outside employer, ERT, could not participate in any such matters and would have to comply with the disclosure requirements of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Denne, 06 -541 April 7, 2006 Page 5 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. 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 (3U)) days of the date of tins Advice pursuant to 51 Pa. Code 13.2(hJ 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