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Home My WebLink About15-545 McFarland ADVICE OF COUNSEL July 8, 2015 Bret D. McFarland Supervisor, Central Region Bureau of Investigations and Enforcement Pennsylvania Gaming Control Board P.O. Box 69060 Harrisburg, PA 17106 15-545 Dear Mr. McFarland: This responds to your letter dated May 26, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as an Investigator Supervisor with the Pennsylvania Gaming Control Board with regard to simultaneously serving as a part-time police officer for a borough which is located in a county that does not have any licensed gaming facilities. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as an Investigator Supervisor with the Pennsylvania Gaming Control Board (“Gaming Control Board”). You have submitted a copy of the classification specification for your position with the Gaming Control Board, which document is incorporated herein by reference. You were previously employed as a police officer in the Commonwealth. You are seeking part-time employment as a police officer with the Police Department of the Borough of Mount Joy (“Borough”), located in Lancaster County, Pennsylvania. You state that the Commonwealth does not have any licensed gaming facilities within Lancaster County. As a part-time police officer for the Borough, you would perform all normal functions of a police first responder. You state that you would perform any work as a Borough police officer outside of your normal Commonwealth work hours. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to simultaneously serve as an Investigator Supervisor for the Gaming Control Board and a part-time police officer for the Borough. McFarland, 15-545 July 8, 2015 Page 2 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 an Investigator Supervisor for the Gaming Control Board, you are a public employee subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the submitted classification specification, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. 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 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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employee is prohibited McFarland, 15-545 July 8, 2015 Page 3 from using the authority of public office/employment or confidential information received by 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. The use of authority of office is not limited merely to voting, but extends 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. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily-declared incompatibility precluding simultaneous service as an Investigator Supervisor for the Gaming Control Board and a part-time police officer for the Borough. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain from participation. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as an Investigator Supervisor for the Gaming Control Board and a part-time police officer for the Borough. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) you are currently employed as an Investigator Supervisor with the Pennsylvania Gaming Control Board (“Gaming Control Board”); (2) you were previously employed as a police officer in the Commonwealth; (3) you are seeking part-time employment as a police officer with the Police Department of the Borough of Mount Joy (“Borough”), located in Lancaster County, Pennsylvania; (4) the Commonwealth does not have any licensed gaming facilities within Lancaster County; (5) as a part-time police officer for the Borough, you would perform all normal functions of a police first responder; and (6) you would perform any work as a Borough police officer outside of your normal Commonwealth work hours, you are advised as follows. As an Investigator Supervisor for the Gaming Control Board, 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. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as an Investigator Supervisor for the Gaming Control Board and a part-time police officer for the Borough. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith McFarland, 15-545 July 8, 2015 Page 4 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 (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, Robin M. Hittie Chief Counsel