Loading...
HomeMy WebLinkAbout89-528 HafnerSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 17, 1989 Claude Hafner, II, Esquire 89-528 201 N. 67th Street Harrisburg, PA 17111 Re: Conflict of Interest, Member of the General Assembly, Attorney /Sales Representative, Competitive Bidding for Liquor Supply to the Pennsylvania Liquor Control Board Dear Mr. Hafner: This responds to your letter of March 17, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction or prohibition upon a member of the General Assembly from either practicing as an attorney or acting as a sales representative for a business which seeks to bid on supplying liquor to the Pennsylvania Liquor Control Board. Facts: You state that you are an attorney representing a member of the General Assembly who is also a practicing attorney. You indicate that the legislator is desirous of participating in competitive bidding to supply liquor to the Pennsylvania Liquor Control Board for a retainer or commission. You conclude by requesting advice under the Ethics Act as to whether this member of the General Assembly may act as an attorney or sales representative for this - business on a retainer or commission basis. Discussion: As a member of the General Assembly, the legislator is a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. As such, he is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Claude Hafner, II, Esquire April 17, 1989 Page 2 Section 3(a) of the Ethics Act provides: 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. S403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public officiai7employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Claude Hafner, II, Esquire April 17, 1989 Page 3 Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Under the above provisions of the Ethics Act, the legislator would not be prohibited under the Ethics Act from serving as an attorney or sales representative for a company that would participate in competitive bidding to supply liquor to the Pennsylvania Liquor Control Board. The Ethics Act does not per se preclude public officials /employees from having outside financial interests, provided that those outside interests do not come in conflict with their public office. See Goodman, Opinion 88 -001. Additionally, although the Ethics Act would not prohibit the member of the General Assembly from acting as an attorney or sales representative of the company in question, the Act would impose restrictions upon the legislator in that he could not use public office or confidential information or the status of his position as a means in whole or part of obtaining this business. 65 P.S. 5403(a). Further, the legislator could not use Commonwealth offices or personnel, or supplies or the facilities in soliciting or performing his private business and he could not use his legislative office as a contact point. See Dorrance, Order 456; Cohen, Order 610 -R. Lastly, 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 in this is advice is the applicability of the new rules of Professional Conduct, the State Adverse Interest Act or the Legislative Code of Conduct in that none of these statutes or rules involve an interpretation of the Ethics Act. Conclusion: As a member of the General Assembly, the legislator is a public official subject to the provisions of the State Ethics Act. The Ethics Act would not preclude this legislator from practicing as an attorney or a sales representative for a firm that would participate in competitive bidding to supply liquor to the Pennsylvania Liquor Control Board in return for a retainer or commission, subject to the qualifications as noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Claude Hafner, II, Esquire April 17, 1989 Page 4 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 52:12. Sincerely, Vincent J. Dopko, General Counsel