HomeMy WebLinkAbout81-611 McNamaraJames M. McNamara, Esquire
Administration Building
Doylestown, PA 18901
Dear Mr. McNamara:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
August 26, 1981
ADVICE OF COUNSEL
RE: Environmental Protection Specialists
81 -611
This responds to your letter of July 1, 1981, in which
you, as Assistant County Solicitor for Bucks County, requested
an opinion from the Ethics Commission.
Issue: You requested advice as to whether an Environmental
Protection Specialist can accept employment in either a
regulated establishment or an establishment that he inspects.
Facts: You informed us that the Bucks County Department of
Health employs Environmental Protection Specialists
(Specialists). Specialists inspect eating and drinking
establishments and other facilities for compliance with
statutory health standards. The Specialists perform their
inspections independently. The Specialists in Bucks County
are currently free to pursue part -time employment. Two
County employees now hold outside employment. Specialist I
is a bartender in an establishment he inspects. Specialist
II is a part -time employee of a retail food chain. He does
not inspect the outlet where he works but he does regulate
other outlets in the chain.
Discussion: In the Ethics Act, 65 P.S. §401 et seq.,
"public employee" is defined as any individual employed by a
politicial subdivision who is responsible for taking or
recommending non - ministerial official action with regard to
inspecting or regulating any person. Id, §402. The Specialists
are plainly public employees within the meaning of the Act.
They are County employees who perform non - ministerial inspec-
tions and determine compliance with regulations. Accordingly,
they are subject to the Ethics Act. The statute does not
absolutely forbid public employees from all outside employment.
Outside work is, however, subject to the restrictions imposed
by the Act.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
James M. McNamara, Esquire
August 26, 1981
Page 2
The Ethics Act forbids both actual conflicts of interest
and the appearance of a conflict of interest. 65 P.S. §401.
A previous decision of the Commission states that a conflict
of interest exists "when an individual represents two or
more persons whose interest is adverse to each other."
Alfano, 80 -007. A Specialist inspecting the establishment
where he works has adverse interests; as a Specialist in
zealous law enforcement and as an employee of the business
in an economically advantageous interpretation of the law.
A Specialist who inspects a bar where he works has a forbidden
conflict of interest. See Simmons, 79 -056. Similarly,
Specialist II is in a conflict of interest when he inspects
other outlets in the chain he works for even though he is
not inspecting the specific store where he works.
There is no inherent conflict of interest in either
Specialist working in a regulated establishment provided
that the Specialist does not inspect any of his employer's
establishments. Some further restrictions must be noted.
Section 3(a) of the Act prohibits a public employee from
using public employment or confidential information received
through holding public employment to obtain financial gain
for himself or a business with which he is associated. 65
P.S. §403(a). The Specialists cannot use their public
employment or confidential information received as Specialists
to benefit themselves or their employers. Nor may a Specialist
accept anything of value, including a promise of future
employment or continued employment, based on the understanding
that their official actions would be influenced thereby. 65
P.S. §403(b).
Conclusion: County Environmental Protection Specialists are
public employees under the Ethics Act. A Specialist may not
inspect an establishment where he works or any other establish-
ment owned by his employer. A Specialist may work in an
establishment subject to county regulation provided he does
not:
(1) inspect his employer's establishments; or
(2) use his public employment or confidential informa-
tion received through public employment to obtain
financial gain for himself or his outside employer;
or
(3) accept anything of value, including a promise of
future or continued employment, based on the under-
standing that his official acts would be influenced
thereby.
James M. McNamara, Esquire
August 26, 1981
Page 3
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 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.
SW /rdp
Sincerely,
S.ndra S. o ristianson
General .unsel