HomeMy WebLinkAbout85-530 Miller JrMr. John C. Miller, Jr.
Commonwealth of Pennsylvania
P.O. Box 3265
Harrisburg, PA 17120
Re: Publication of Book; Employee, Pennsylvania Public Utility Commission
Dear Mr. Miller:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
April 8, 1985
ADVICE OF COUNSEL
85 - 530
This responds to your letter of February 26, 1985, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether an employee of the Pennsylvania Public Utility Commission may
publish a book regarding small power production.
Facts: You indicate that you are currently employed by the Pennsylvania
Public Utility Commission as a fixed utility valuation engineer in the Bureau
of Conservation, Economics and Energy Planning. In this position you review
and analyze the annual system cost data filed by electric utilities for
completeness and accuracy. As part of your function you participate in
determining the Commission's position on alternate energy laws, rules and
regulations. Additionally, you are responsible for preparing testimony on
utility electricity generation versus alternate means of electricity
production. Finally, you promote alternate energy in the following forms:
cogeneration, hydroelectric, wind, solar, waste to electricity and geothermal,
by press releases, and oral presentations. We have reviewed your job
description and have incorporated that document herein by reference.
You indicate that you are currently contemplating the publication of a
manuscript entitled "Cogeneration and Small Power Production: A look at the
Rebirth of an Industry." This work will be divided into three sections,
regarding the history, technology and economics of cogeneration.
Mr. John C. Miller, Jr.
April 8, 1985
Page 2
You indicate that you originally had intended to prepare this work for
the Commission but your sLpervisor did not believe this would be appropriate
work for the Commission The information supplied by you also indicates
that:
The Public Utility Commission does not maintain historical records of
privately held cogeneration and small power production.
The Federal Energy Regulatory Commission evaluates the engineering of the
cogeneration and small power production facilities during the "Qualifying
Facility" certification process. The Commission does not participate in this
i.rtvestigation.
The economic evaluation of the "Qualifying Facility" is the
responsibility of the entrepreneur or company developing the project. Again,
it is not a Commission activity.
You ask whether, under these circumstances, there. is any prohibition on
your proposed activity under the Ethics Act.
Discussion: As a fixed utility valuation engineer in the Pennsylvania Public
Utility Commission you are to be considered a public employee as that term is
defined in the State Ethics Act. 65 P.S. §401. As such, your conduct must
conform to the requirements of the Act.
Generally, the Ethics Act provides that:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Mr. John C. Miller, Jr.
April 8, 1985
Page 3
Clearly under the above provision of law, as a public employee, you may not
use your public position, or any confidential information obtained therein to
secure financial gain for yourself. This section could be implicated for
example if you were to market this publication utilizing your official title
and position with the Public Utility Commission, Hensler, 80 -746. Similarly,
you may not employ any of the personnel, facilities, or other materials of
that Commission for the purpose of preparing or advancing the publication
and /or sale of this manuscript. While you indicate in your request that the
PUC maintains no historical data reagarding cogeneration and small power
production, you do not indicate what, if anything, the PUC does in relation to
that industry. As such, with regard to Section 3(a) of the Ethics Act, we
reiterate that you may not use any confidential information that you are aware
of by virtue of your employment with the PUC. This would be so regardless of
the specific manner in which the PUC receives or obtains such information.
Boltz, 84 -530; Simon, 84 -036. Without specific questions, it is difficult to
envision or include herein all of the potential situations that may be
- ..questionable under this section of the act. This advice is to act as a
general guideline.
In addition to the foregoing, the State Ethics Commission may also
address other areas of conflict as they arise. 65 P.S. §403(d). Generally,
the financial interests of a public employee may and should not present a
conflict with the public trust. Fritzinger, 80 -008. While the Ethics Act
presents no absolute prohibition on the activity that you have proposed, we
must review that activity in light of these concerns. In your position with
the PUC you are in part responsible for writing testimony regarding and
promoting alternate forms of energy including that of cogeneration, the
subject of your proposed manuscript. You also are responsible for the review
and analysis of such alternate forms of energy.
If, in fact, the service you render in your public employment for the PUC
is indentical to and involves the exact research, analysis, and promotion
which you will be privately marketing in the form of a publication, then a
question of such a conflict may arise. This is so because in such a situation
it would appear as though you would be utilizing your public employment to
advance or prepare your manuscript. In such a situation it would be difficult
to separate that service which you were performing as a public employee and
that which you were performing in aid of your authorship. Simon, 84 -036.
For the purposes of this advice, however, we will assume that your work
for PUC is clearly distinguishable from that which will be necessary in your
book. Therefore, in that situation, there would be no prohibition on the
activity you propose.
Mr. John C. Miller, Jr.
April 8, 1985
Page 4
Finally, it should bs no'ed that the State Ethics Commission is only
empowered to address this issue within the purview of the Ethics Act. We do
not intend this advice to be cosi:1ered as interpretators of any other
statute, regulation or code of conduct such as the recently promulgated PUC
Ethics Code of Conduct.
Conclusion: The Ethics Act presents no per se prohibition on the activity
proposed. Your activity, however, must conform to the requirement so of the
Ethics Act as set forth above.
Pursuant to Section 7(9)(ii), this 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, providing 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 request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion, from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
,:; JC /sfd
Sincerely,
John J. .ntino
Genera Counsel