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HomeMy WebLinkAbout82-529 MayhewAllison J. Mayhew Personnel Officer Pennsylvania Fish Commission 514 Finance Building Harrisburg, PA 17120 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 April 7, 1982 ADVICE OF COUNSEL 82 -529 RE: Pennsylvania Fish Commission; Dual Employment; Game Commission; Appointed Official Dear Mr. Mayhew: This responds to your letter of February 25, 1982 in which you, as Personnel Officer of the Pennsylvania Fish Commission, requested advice from the State Ethics Commission. Issue: Does the Ethics Act limit the ability of a Pennsyl- vania Fish Commission employee to seek appointment to and service on the Pennsylvania Game Commission? Facts: In your capacity as Personnel Officer for the Pennsylvania Fish Commission, you write with respect to the inquiry of a present Fish Commission employee. The employee has questioned the propriety of seeking appointment to and serving as a member of the Pennsylvania Game Commission. The Pennsylvania Fish Commission, established in 30 P.S. 301 et seq., is responsible for: 1) the encourage- ment, promotion and development of the fishery interests; 2) the protection, propagation, and distribution of fish; and 3) the management of boating and the operation of boats. 30 P.S. §321. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Allison J. Mayhew April 7, 1982 Page 2 The Pennsylvania Game Commission, the existence, power, and duties of which are set forth in 34 P.S. 1311.201 et seq., serves the Commonwealth "to protect, propagate, manage and preserve the game, fur- bearing animals, and protected birds of the State, and to enforce, by proper action and proceedings, the laws of this Commonwealth relating thereto." 34 P.S. 1311.210. _Discussion: The Ethics Act. 65 P.S. 401 et seq., regulates the conduct of public officials and public employees as defined by the Act. Public employees are persons employed by the Commonwealth who are responsible for taking or recommending nonministerial official action with regard to regulating any person. 65 P.S. 402. Your letter does not describe with any detail the scope of responsibility assumed by the Fish Commission employee to whom you refer. Presuming that the person is a public employee as defined above, he /she is subject to the provisions of the Ethics Act. The purpose of the Ethics Act is to strengthen the faith and confidence of the people of the state in their government and to assure that the financial interest of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. 401. Public employees as well as public office holders must refrain from assuming positions which present an actual or an apparent conflict interest. The Ethics Commission has held that a conflict exists when a person represents parties with interests adverse to each other. See Alfano, 80 -007. The interest of the Fish Commission and the Game Commission, however, are not adverse to one another. Sevice as a Game Commissioner while still employed by the Fish Commission would not present a conflict of interests in violation of the Ethics.Act. Thus, the Act does not place a per se prohibition on the simultaneous service. Of course, the employee must still comply with the other provisions of the Ethics Act. For instance, he or she may not use his public office or any confidential informa- tion received therefrom 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. 403(a). Allison J. Mayhew April 7, 1982 Page 3 Similarly, the public employee may not 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 would be influenced thereby 65 P.S. 403(b). Finally, no public employee or member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body with which the employee is associated unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. 65 P.S. 403(c). Conclusion: The Ethics Act does not prohibit an employee of the Pennsylvania Fish Commission from serving as an appointee to the Pennsylvania Game Commission. He or she must, never- theless, comply with the other provisions of the Act as long as his or her tenure as a public employee continues. 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 /rdp cc: Ralph W. Abele, Executive Director Sincerely, dra S r stianson General Cou _el