HomeMy WebLinkAbout85-596 BarnabeiArnold A. Rarnahei, Esquire
122 Huntley Drive
Harrisburg, PA 17112
Re: Conflict of Interest, Attorney, Department of Revenue, Associate Real
Estate Broker
Dear Mr. Rarnahei:
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108- ••1470
November 19, 1985
85 -596
This responds to your letter of October 11, 1985, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether any conflict of interest is occasioned hy a Department of
Revenue attorney simultaneously serving as a private associate real estate
broker.
Facts: You currently serve as an attorney in the Office of Chief Counsel for
the Department of Revenue. You are assigned to the General Tax Division. In
that position, you are responsible for rendering legal services and supplying
legal advice on matters affecting the Department of Revenue. In this respect,
you are involved in rendering legal opinions and performing legal research in
response to requests from taxpayers, tax administrators, accountants and
attorneys. You also represent the department in appeals handled hy that
agency and perform various functions regarding legal matters that come before
the department. You indicate that in 1979 you hecame eligible to obtain a
real estate brokers license. This eligibility is effective for a seven year
period, and within that time you must ohtain your brokers license. You
indicate that in May of 1986 your eligibility to obtain your real estate
hrokers license will terminate. In order to avoid this termination, you wish
to become affiliated as an associate broker with a real estate agency that you
have identified as the Stuard Derrick Real Estate Incorporated, Company,
located in Harrisburg, Pennsylvania. As an associate broker you will he
referring potential purchasers and sellers of real estate to the agency. You
will not he an employee of the agency and you will not be on the payroll of
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Arnold A. Rarnahei, Esquire
November 19, 1985
Page 2
this agency. You further indicate that you will not be involved in the
preparation of any local , state, or federal tax returns for this agency and
that you will receive no compensation for services other than referral fees
for clients provided to the agency. The work you will be performing in this
respect will not be conducted during or interfere with your regular work
hours. You informed the Commission that you will not he representing the real
estate agency before any local , state, or federal agency or court.
You now ask whether, within the purview of the State Ethics Act, your
contemplated activity is permissible.
Discussion: At the outset, it must be noted that the Ethics Commission may
only address your question within the purview of the State Ethics Act. The
Commission will not offer advice with respect to any duties or obligations
that may be imposed by other provisions of law, such as the State Adverse
Interest Act or the Governor's Code of Conduct. As an attorney, within the
Office of General Counsel , Department of Revenue, hereinafter the Department
you are to be considered a public employee as that term is defined' in the
State Ethics Act. 65 P.S. .5402; 51 Pa. Code X1.1. As such, your conduct must
conform to the requirements thereof. See Thau, 84 -020A; Maunus, 84 -020R.
Generally, the provisions of the State Ethics Act do not place any per se
restrictions upon a public official's /employee's outside or private
empl oyment.
The Act does provide as follows:
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).
Within this provision of law, a public employee may not use his public
position in order to obtain any financial gain other than his compensation
provided by law. Similarly, he may not use confidential information obtained
in his public position for similar purposes. Thus, within the above provision
of law, the Commission has on numerous occasions determined that a public
employee may not use the facilities of his public employer in order to advance
or otherwise promote the conduct of his private employment. Thus, you may not
use the facilities, personnel or time of the Department in order to advance
your private employment. See Nelson, 85 -008; Cessar, 82 -002.
Arnold A. Barnabei, Esquire
November 19, 1985
Page 3
In addition to the foregoing, the Ethics Act further provides that the
State Ethics Commission may address other areas of possible conflict. See 65
P.S. , 5403(d). The parameters of the type of activity that would be
encompassed wi thin this provision of law may general ly be defined by reviewing
the purpose and intent of the State Ethics Act. The State Ethics Act was
promulgated in order to insure the citizens of the Commonwealth that the
financial interests of their public officials and employees neither conflict
nor appear to conflict with the public trust. As a result, the Commission has
been empowered to address these areas of conflict and to issue advice in
relation thereto. In the instant situation, there appears to be no absolute
or per se conflict in your serving as an associate real estate broker while
you are simultaneously employed with the Pennsylvania Department of Revenue.
However, if any matter regarding this real estate agency or any purchaser or
seller who you referred to this agency were to come before the Department, you
as an employee therein would be prohibited from participating in such matter.
If such a case should arise, you must abstain from participation in relation
to that matter and you must similarly disclose your interest in the matter as
well as the fact that you have abstained from the matter. Additionally,
similar conflicts of interest may arise if you were to represent this agency
in relation to any matter that came before the Pennsylvania Department of
Revenue. As you have indicated in your letter, you will not be preparing tax
returns, and you will not be representing this company before any l ocal ,
state, or federal agency or court. As a result, there appears to be no
conflict of interest at this time. In the event that a situation should arise
that alters or in any way changes the current status of this position, you may
seek the further advice of this Commission.
Conclusion: There is no per se prohibition under the State Ethics Act upon
your becoming associated with a real estate firm as an associate broker while
you simultaneously serve as an attorney within the Pennsylvania Department of
Revenue. The guidelines set forth herein should be observed. Additionally,
should any material facts change in relation to this situation, you are
advised to request the further advice of this Commission. Finally, the
Commission has only addressed to your request under the purview of the State
Ethics Act and has not considered other provisions of law or codes of conduct
that may be applicable.
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.
Arnold A. Barnabei, Esquire
November 19, 1985
Page 4
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.
JJC /sfb
Si nc
John J
Ge - al Counsel