HomeMy WebLinkAbout86-592 BabishMr. Wayne L - . Babish
135 Altadena Drive
Mt. Lebanon, PA 15228 -1003
Dear Mr. Babish:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
August 14, 1986
ADVICE OF COUNSEL
86 - 592
Re: Conflict of Interest, Investigator, Office of Attorney General, Private
Detective
This responds to your letter of June 24, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether the Ethics Act presents any prohibition upon your
participation as a shareholder, officer, or investigator for a private
security firm while you are employed as an investigator with the Office of
Attorney General.
Facts: You advise that you are currently employed by the Office of Attorney
General, Commonwealth of Pennsylvania. You serve as a Narcotics Agent II,
assigned to the Bureau of Narcotics Investigations and Drug Control. In this
position, you are responsible for criminal investigative work of a highly
confidential nature involving the investigation of violations of the
Controlled Substance, Drug, Device, and Cosmetic Act. Generally, you collect,
evaluate, develop and prepare evidence for presentation for prosecution. You
work either independently or as a case agent leading a team of agents or as a
member of a team of agents. An employee in this position may assume an
undercover identity in order to infiltrate the criminal element involved in
drug violations and obtain evidence leading to prosecutions. You are also
responsible for seeking out, contacting and developing informants to procure
information relating to violations of the Controlled Substance Drug, Device,
and Cosmetic Act and other applicable Commonwealth laws and statutes. You
interview witnesses and interrogate subjects to ascertain information. You
prepare criminal complaints and search warrants and you make arrests and
execute search warrants pursuant to court - authorization. You are authorized
Mr. Wayne L. Babish
August 14, 1986
Page 2
to use all of the lawful authority of agents of the Office of Attorney General
during the pursuit of your investigations. You are also, as part of your
role, responsible to appear in court before district justices, statewide
investigating grand juries and other levels of the judicial process to present
evidence and testimony as a prosecution witness. We have reviewed your
position classification, and have incorporated that document herein by
reference.
You indicate that you are currently contemplating initiating a private
security business in the Commonwealth of Pennsylvania. In this respect, you
would be establishing a corporation to provide private detective and
investigative services in the Pittsburgh, Pennsylvania area. You will be
joined in this venture by a Pittsburgh area attorney, Lawrence G. Zurawsky.
You have requested the advice of the State Ethics Commission in relation to
two particular issues. You ask whether you may participate as either a
shareholder or officer in a corporation that provides private detective
services. In the alternative, you have requested the advice of the Commission
as to whether you may actively participate on a day -to -day basis in the daily
operations and investigations of that business.
Discussion: As a Narcotics Agent II, in the Office of Attorney General's
Bureau of Narcotics Investigations and Drug Control, you are a public employee
as that term is defined in the State Ethics Act. 65 P.S. §402. As such, you
are subject to the requirements of the the State Ethics Act. Peffley, 80 -055,
Stendel, 83 -543, Fedeanis, 84 -594. Generally, the State Ethics Act places no
per se prohibition upon a public employee or 'public official engaging in
private employment enterprises simultaneously with their public employment.
The Act does provide as follows:
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 _
h. is associated. 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 specifically
prohibits the type of private employment that you have outlined in your letter
of request, a law enforcement officer, who engages in private employment 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
Mr. Wayne L. Babish
August 14, 1986
Page 3
position as a public employee. Similarly, you may not use the facilities or
authority of your position as an investigator of the Office of Attorney
General in order to obtain any benefit for yourself or the firm which may
employ you. The use of that law enforcement authority, which is vested in you
by virtue of your public employment, in order to benefit or advance your
private enterprise would be a violation of the above provisions of the State
Ethics Act. Similarly, an investigator who uses confidential information that
is only available 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, a public employee may not use
such information as confidential investigative files, automobile operators
information or other types of confidential information which is available only
to him or other law enforcement officers to aid private security employment.
A publicly employed law enforcement officer may similarly not use any other
confidential information to benefit his private employment.
In addition to the foregoing provisions 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 determined by reviewing the
intent and purpose of the Ethics Act as set forth in the preamble thereto. 65
P.S. §401. That provision of law generally sets forth the intent of the Act,
i.e. to ensure the public that the interests of their public officials and
public 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 publicly employed investigator engaging in private
investigative work. In these situations, the law enforcement officer must
publicly disclose, to his public employer, the potential conflicts of
interests and he must abstain from participating in any matter, as an
investigative officer, that in any way relates to activities he may have taken
as a private investigator. Generally, in your letter of request, you have not
specifically set forth the types of activity in which your private security
firm would be engaging. It is difficult to determine, therefore, whether
there is an inherent conflict of interest, the type of which would prevent
absolutely simultaneously serving in private employment of this type while you
are a publicly employed investigative officer. For example, if as a private
investigator you would be engaging solely in work for attorneys in relation to
cases that they are defending in relation to drug related cases, then there
would surely be an inherent conflict of interest between your private
enterprise and your public position. However, if you will be engaging in
investigative activity which is not in any way related to the type of work
which you are doing as a public employee, then a conflict of interest might
only arise in a specific situation. In those situations, you must, of course,
act in accordance with the provisions of the State Ethics Act. A number of
situations may develop for example, in which you, as a public employee, would
be required to abstain. For example, if as a private investigator you are
performing work for a particular attorney or a particular individual and that
individual, at some point in time, becomes the subject of your investigation
Mr. Wayne L. Babish
August 14, 1986
Page 4
as a public employee, or if the attorney for whom you have provided private
work represents someone who you are investigating or someone against whom you
are testifying, then you would have to abstain from participating in that
matter as a public employee. This, of course, could raise a problem in that
if your testimony would be required in a court of law for prosecution you
would be placed in a difficult situation. Thus, it may be the better practice
to forego private employment from anyone with whom you have been involved as a
public employee. In this respect, the situation mentioned above would not
develop. Additionally, foregoing such employment would also alleviate any
concerns that could develop under Section 3(b) of the State Ethics Act which
provides as follows:
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall 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 official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
This provision of law is set forth in order to provide a complete
response to your question and to further show the type of question that could
be raised in the event that you were to accept private employment for example,
from an attorney who represented an individual against whom you had proceeded
as a public employee. As a result of the foregoing, you should exercise
caution in your private enterprises not only regarding the type of activity in
which you are engaged but regarding the individuals for whom such activity is
performed. In any event, when a situation develops where you would be
required to abstain as a public official, you must reveal that abstention to
your governmental body and have it appropriately recorded.
In add to the foregoing, we remind you that as a public employee you
are required to file a Statement of Financial Interests on an annual basis.
Included in your financial disclosure should be all sources of income in
excess if $500 and the identity of all business enterprises in which you have
a financial interests or in which you serve as an officer or director.
Finally, we must note that we have issued this advice solely under our
authority as set forth in the State Ethics Act. We have not herein addressed
any questions that may arise under other codes of conduct such as the Office
of Attorney General's Code of Conduct. Further advice regarding such matters
should be obtained from the appropriate authority in your governmental body.
Mr. Wayne L. Babish
August 14, 1986
Page 5
Conclusion: While the State Ethics Act presents no per se prohibition upon an
individual who is an investigator for a law enforcement agency and engaging in
outside private employment, the Ethics Act would prevent the individual from
using any confidential information obtained in his public employment to
benefit of his private enterprise; using the office facilities of his public
employer to advance the work of his private enterprise; using the time of his
public employer to conduct his private employment; using the authority vested
in him by virtue of his public law enforcement position to advance his private
interests. Additionally, the Ethics Act would require that as a public
employee you must abstain from participating in any matter or investigation
that relates to an individual who has employed your private security firm.
This would include not only the individual whom you are investigating as a
public employee but also, for example, attorneys or other representatives of
those individuals. Additionally, depending upon the type of work performed
by your private firm, the further advice of this Commission may be necessary
as inherent conflicts of interests may develop depending upon the nature and
scope of the work performed in the private capacity. You should also be aware
of Section 403(b) of the State Ethics Act as set forth above as well as the
financial interests filing requirements of the State Ethics Act. Finally,
this advice does not address any questions relating to supplemental employment
procedures or separate codes of conduct that have been promulgated by the
Office of Attorney General.
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 will 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.
Since
John
Gen Counsel