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HomeMy WebLinkAbout81-633 MusselFred Mussel 927 Glenwood Street Emmaus, PA 18049 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 October 30, 1981 ADVICE OF COUNSEL RE: Section 3(a); Waterways Patrolman Dear Mr. Mussel: 81 - 633 This responds to your letter of September 28, 1981, in which you, as a Waterways Patrolman, requested an opinion from the Ethics Commission. Issue: You asked for advice as to whether the Ethics Act prohibits you from preparing and selling a fishing map of the county where you are employed as a waterways patrolman. Facts: You informed us that you work for the Pennsylvania Fish Commission as a waterways patrolman. Your duties include inspection and patrol of an assigned area to enforce the various statutes and regulations concerning fishing and boating. You have been assigned to Lehigh County since 1970 and have acquired knowledge of the fishing opportunities available in the County. To dissem- inate this information you prepared a fishing map of the area and you now sell this map to local fisherman. The map contains information that is available to the public if requested, relating to stream and fish - stocking locations. Discussion: The Ethics Act, 65 P.S. Section 401 et seq., regulates the conduct of public officials and public employees. Public employees are defined as persons em- ployed by the Commonwealth who are responsible for taking State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Fred Mussel October 30, 1981 Page 2 or recommending non - ministerial official action with regard to regulating any person. 65 P.S. Section 402. As an employee of the Commonwealth you exercise official discretion while regulating persons under the fish and boating laws. Thus, you are a public employee subject to the Ethics Act. The statute does not prevent public employees"from engaging in other businesses if the requirements of the Ethics are observed by the public employee. In Section 3(a) of the Act the Legislature provided that: 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, his immediate family or a business with which he is associated. 65 P.S. Section 403(a). You may not, therefore, use your position as a waterways patrolman to promote the sale of your map. Obviously you cannot use your public employment to coerce any person into buying a map. Section 3(a) also proscribes use of confidential information received through public employment to obtain financial gain. You may not use confidential information that comes to you as an employee of the Fish Commission to prepare and sell your fishing map. You informed us that the information contained in the map is readily available to the public. For example, information about when and where fish are to be stocked in a stream may be obtained by a telephone call by any interested person. Clearly then, the information you place on and disseminate through the maps you sell is not "confiden- tial." There is no conflict of interest or violation of the Ethics Act in the preparation and sale of your fishing map. Fred Mussel October 30, 1981 Page 3 Conclusion: As a waterways patrolman charged with en- forcing fish and boating law you are a public employee subject to the Ethics Act. You may use non - confidential information to prepare a fishing map of the area you patrol. You may not use your post to promote the sale of the map nor may you use confidential information received as a public employee to prepare or sell the map. Under the facts as you present them, however, the pre- paration and sale of these maps does not contravene 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 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 /lma 5554 cc: Ralph W. Abele, Executive Director Fish Commission S'ncerely, andra S. C istianson General CR nsel