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HomeMy WebLinkAbout89-537 HafnerClaude Hafner, II, Esquire 89 -537 201 North 67th Street Harrisburg, PA 17111 Re: Simultaneous Service, Senate Employee and Position Requiring Senate Confirmation Dear Mr. Hafner: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 3, 1989 This responds to your letter of March 29, 1989, in which you requested advice from the State Ethics Commission Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a Senate employee from also serving or being employed in a compensated position requiring Senate confirmation. Facts: You state that you represent a client who is currently an employee of a Pennsylvania Senator who may be nominated for a compensated position of public office, which requires Senate confirmation. You request advice under the Ethics Act as to whether that person may be nominated to that position in light of his current employment and secondly whether he may continue to serve in his current position while holding the second position of public office. Discussion: As an employee for a Pennsylvania Senator, it is assumed for purposes of this advice that the individual is a "public employee" under the Ethics Act. See 65 P.S. S402; 51 Pa. Code S1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Claude Hafner, II, Esquire May 3, 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 o b t a i n 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). 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 official %employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. As a general rule, there does not appear to be a real possibility of any financial gain or inherent conflict arising if Senate employee were to serve both as a public official /employee and as an individual nominated for public office which requires Senate confirmation. Basically, the Ethics Act does not state that it is inherently incompatible for a public official /employee to serve or be employed as an individual nominated for public office which requires Senate confirmation. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano Opinion, 80- 007. Of course, since you have only the addressed the question in non - specific terms, only a very generalized response may be issued under the Ethics Act. In addition, it is assumed that the public employee has neither used public office or confidential information to obtain the position which will require Senate confirmation. 65 P.S. 403(a). Claude Hafner, II, Esquire May 3, 1989 Page 3 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). Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which must be observed, a public official /employee must neither offer nor accept anything of value on the understanding or with the intention that the public officials /employees judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). However, under Section 3(d) of the State Ethics Act, the State Ethics Commission may address other areas of possible conflict of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials /employees do not conflict with the public trust or create the appearance of a conflict with the public trust. Therefore, the public employee should be mindful of the Ethics Act so that his actions neither create a conflict or the appearance of a conflict with the public trust. Claude Hafner, II, Esquire May 3, 1989 Page 4 Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: As an employee -for a Senator, it is assumed that the individual is a "public employee" subject to the provisions of the State Ethics Act. As a general rule, a public official /employee, may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of Senate employee and compensated position of public office which requires Senate confirmation. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent ` . Dopko, General Counsel