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HomeMy WebLinkAbout86-576 BowenMr. David Bowen, Vice - President Frackville Borough 10 North Lehigh Avenue Frackville, PA 17931 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 20, 1986 ADVICE OF COUNSEL 86 - 576 Re: Conflict of Interest, Police Officer, Private Employment, Security Agency Dear Mr. Bowen: This responds to your letter of May 22, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether a horough police officer may simultaneously engage in private employment as a security agent. Facts: As chairperson for the Frackville Borough Police and Fire Protection Committee, you have requested the advice of the State Ethics Commission regarding an issue that has recently been presented to the horough council. The questions specifically relates to the private employment activities of memhers of the Frackville Borough Police Department. Specifically, you have requested the advice of the Commission as to whether it is a conflict of interest for a police officer to engage in part -time private employment as a private detective or to own a private detective agency.. You have further requested the advice of the Commission as to whether a conflict of interest is occasioned by a police officer's private employment as a security guard or a security agent for a private firm. Discussion: For the purposes of this advice, we will assume that memhers of a horough police department are public employees within the purview of the State Ethics Act. 65 P.S. 5402. As such, their conduct would he suhject to the terms and requirements of that provision of law. Generally, the Commission may only address questions that arise under the purview of the State Ethics Act. The Commission does not, generally, have the jurisdiction or authority to specifically respond to any other provision of law except insofar as such law may impact upon the provisions of the State Ethics Act. Mr. David Bowen, Vice - President June 20, 1986 Page 2 Generally, the State Ethics Act places no per se prohibition upon a public employee or a public official engaging i n private empl oyment simultaneously with their public employment. The Act does provide as f o l lows : 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 obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associ ated. 65 P.S. 403(a). Within the above provision of law, no public official may use their public office or employment in order to obtain a financial gain other than the compensation that is provided for by law. They may not use any confidential information obtained in their public employment for similar purposes. Thus, while there is no provision in the State Ethics Act that's specifically prohibiting the type of private employment that you have outlined in your 1 etter of request, a police officer, who engages i n private empl oyment of the type set forth in your letter of request, may not use, to benefit his private employment any of the information that he may obtain by virtue of his position on the police department. Similarly, he may not use the facilities or authority of his position as a police officer in order to obtain any benefit `or himself or the firm by which he is employed in the private sector. The use of the authority, which is vested in him by virtue of his public employment in order to benefit or advance his private employment, would surely be a violation of the above provision of the State Ethics Act. Similarly, a police officer, who uses confidential information that is available only to him by virtue of his public employment to aid in security or investigative work that he does as a private individual, would also be in violation of the Act, Specifically, an officer may not use such information such as confidential police files or automobile operator's information, which is available to the police department in order to aid hiin in his private employment. A publicly employed police officer may similarly not use any other confidential information to benefit his private employment. In addition to the foregoing provision of law, the State Ethics Act authorizes the State Ethics Commission to address other areas of possible conflict. 65 P.S. §403(d). The parameters of the types of activities encompassed, by this provision of law, are generally determi ned by reviewing the intent of the Act as set forth in the preamble thereto. 65 P.S. §401. That provision of law generally outlines that it is the over -ridi ng intent of the Act to ensure the public that the interests of their public officials and Mr. David Bowen, Vice - President June 20, 1986 Page 3 employees do not conflict with the public trust. In this respect, there may be certain situations wherein a conflict of interest could be occasioned by a police officer of the borough engagi ng i n private investigative type work. In these situations, the police officer must publicly disclose to the borough the potential conflicts of interests and he must abstain from participating in any matter, as a police officer that in any way relates to activities he may have taken as a private investigator. Because you have not specifically set forth the types of activities in which the police officers would be engaging as private detectives, it is difficult to determine whether an inherent conflict of interest, the type of which would prevent absolutely simultaneously serving in private employment of this type has been occasioned. For example, if, as a private investigator, the police officer was engaged in mainly criminal type investigations of the exact type that he is responsible for doing as a police officer, such an inherent conflict may be occasioned. However, if a police officer is engaged in investigative activity, which is not in any way related to the type of work he is doing as a police officer, then conflicts of interest might only arise in specific situations. In those situations, the officer must, of course, act in accordance with the previously outlined provisions of the State Ethics Act. Additionally, there would appear to be no type of inherent conflict of interest if a borough police officer were to engage in security type activities. This would be the type of activity which does not require the use of any official authority to perform. Specifically, an individual, in this situation, would merely be guarding specific facilities and locations and it does not appear that such individual would be engaged in the type of conflict of interest that would absolutely prohibit his private activity. However, if specific situations should develop, where a conflict of interest between his public position and his private position are occasioned, then the officer must disclose the conflict of interest and take appropriate steps to abstain from participating as a public official i n any matter which relates to his private activities. Finally, it is noted, as we have stated at the outset of this advice, the State Ethics Commission may only address the question you have presented under the provisions of the State Ethics Act. This advice is not intended to imply, or in any way indicate, that there is any type of prohibition upon borough council implementing its own personnel rules that would be stricter than the provisions of the State Ethics Act. Conclusion: The State Ethics Act generally presents no per se prohibition upon the simultaneous service of a police officer as a private security guard or private investigator. As a public employee, this individual must ensure that his conduct conforms to the requirements of the State Ethics Act as outlined above. Additionally, this advice is not intended to imply that the borough council may not enact stricter provisions then those set forth in the State Ethics Act through appropriate borough procedures. Mr. David Bowen, Vice - President June 20, 1986 Page 4 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 w i l l be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Si nc�.�.e1y, o nJ. .nt Gene . Counsel