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HomeMy WebLinkAbout81-601 CohenMailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (71 7) 783 -1610 August 11, 1981 ADVICE OF COUNSEL Joseph L. Cohen Administrative Law Judge Commonwealth of Pennsylvania Pennsylvania Public Utility Commission 204 Fifth Avenue Buhl Building, 3rd Floor Pittsburgh, PA 15222 RE: Consulting Services, Employment Dear Judge Cohen: 31 -601 This responds to your communication of July 21, 1981 in which you requested advice from the State Ethics Commission. Issue: You requested advice as to whether the Ethics Act prohibits or restricts you, as an Administrative Law Judge serving with the Pennsylvania Public Utility Commission, from rendering services for compensation to a corporation entitled DHR. Facts: You advise that you currently serve as an'Admini- strative Law Judge with the Pennsylvania Public Utiltity Commission (PUC). During 1980 and 1981 you have on your own time (on weekends and taking annual leave when necessary at other times) rendered services for DHR Incorporated. DER is an energy - oriented consulting firm that has performed consulting services for the Federal. Department of Energy, private foundations and variety of entities and organizations interested in energy matters. DHR to your knowledge has not been involved with any consulting services to the Commonwealth nor to any utility subject to the juris- diction and regulation of the PUC. Your participation with State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Joseph L. Cohen August 11, 1981 Page 2 DHR has been in relation to a report regarding a proposed governmental agency structure on the federal level to regulate fusion reactors and an analysis of provisions of the Public Utility Regulatory Policy Act (PURPA) and its regulations in regard to the cogeneration controversy involving Consolidated Edison Company of New York. You indicate that you will not perform services for DHR which would involve any utilities subject to the jurisdiction of the PUC. In addition, the income which you received from DHR and which you will receive from DHR, if in excess of $500, has been and is reportable on your annual Financial Interest Statement. Discussion: The Ethics Act, 65 P.S. 401 et. seq. defines a public employee as an individual employed by the Commonwealth responsible for taking or recommending non - ministerial official action in regard to inspecting, licensing, regula- ting or auditing any person or any other activity where the official action has an economic impact of greater than de minimus nature on the interest of any person. It is clear that in your role as an Administrative Law Judge with the PUC you would take or recommend such actions. Accordingly, you are a "public employee" subject to the limitations and prohibitions of the Ethics Act. The Ethics Act, however, does not require that public employees refrain from all business ventures or outside, part -time employment. For example, the Ethics Commission has held that an individual may even serve in more than one political entity as solicitor simultaneously. King, 79 -034. Essentially, the Ethics Act would preclude any employment which would constitute a conflict of interest with your public employment. The Ethics Commission, however, has defined "conflict of interest" as existing where an indivi- dual represents two or more persons whose interests are adverse to each other. See Alfano, 80 -007. In your situa- tion, it does not appear that the interests of the PUC and DHR are adverse to one another. Accordingly, serving as an Administrative Law Judge and performing services for DHR would not per se be a conflict of interest under the Ethics Act. You should, however, remember that the Ethics Act would prohibit any public employee from using his public employ- ment or confidential information received through public employment to obtain financial gain for himself or his Joseph L. Cohen August 11, 1981 Page 3 family. See 65 P.S. 403(a). In addition, no person may offer a public employee any thing of value, including a promise of future employment, based on the understanding that his official actions would be influenced thereby. 65 P.S. 403(d). _These restrictions are cited not to indicate that there is any violation of the Ethics Act in the situation which you describe, but to serve as a point of reference and guide for conduct in general, Conclusion: There is no conflict of interest per se under the Ethics Act which would prohibit an Administrative Law Judge with the PUC from serving this energy -- oriented consul- ting firm an a contractual basis, especially given the restrictions which you have placed upon yourself that you will not perform services for DHR that would involve any public utility subject to the jurisdiction of the PUC. Other restrictions relating to the use of confidential information or the acceptance of any thing of value are noted for general reference and must be observed in any event 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 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 you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, cc: Susan M. Shanaman, Chairman William R. Shane, Chief ALJ William J. Bauer, Personnel Director Sandra S. ristianson General Counsel