HomeMy WebLinkAbout86-615 BrandMr. Ronald D. Brand
430 Meadow Drive
Camp Hill, PA 17011
Dear Mr. Brand:
Maihn Address
State Ethics Commission
308 Finance Building
P. 0. Bo:: 11470
Harrisburg, Pa. 17108 -1470
Octoher 28, 1986
ADVICE OF COUNSEL
86 -615
Re: Simultaneous Service, Director of Rureau of Liquor Audits, Employee,
Liquor Industry
This response to your letter of Septemher 12, 1986, wherein you
requested the advice of the State Ethics Commission.
-Issue: Whether the State Ethics Act presents any prohibitions upon
simultaneous service of an individual as Director of the Rureau of Liquor
Audits, in the Office of the Auditor General and private employment in the
Liquor Industry.
Facts: You have requested the advice of the State Ethics Commission regarding
the ahove issue. You advise that you are currently employed as the Director
of the Rurueau of Liquor Audits in the Office of the Auditor General. You
have sought the opinion of the Ethics Commission regarding any restrictions
that may he applicahle to you if you were to simultaneously engage in
employment activities in the Alcoholic Reverage Industry, the Rureau of
Alcohol, Tobacco and Firearms, or any other state liquor control hoard.
As Director of the Rureau of Liquor Audits you are responsihle for the
administrative work of directing the Field Auditing Program in that hureau.
Generally, you are responsihle for state -wide auditing program of state stores
and warehouses in order to determine the accountahility of physical inventory
and cash receipts. Work involves planning, directing and reviewing the
auditing of records and inventory, both physical and cash, to determine
accountahility of Commonwealth personnel. In addition to the foregoing, you
are responsihle for analyzing and recommending changes in existing audit
procedures and operations and also for formulation of new procedures. You
have participated with the Liquor Control Roard Representatives in the
resolution of discrepancies disclosed hy field audits. We have reviewed your
classification specifcations (0353), and have incorporated that document
herein hy reference.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Ronald D. Brand
October 28, 1986
Page 2
Discussion:
General , you
Act. 65 P.S
of that law.
Clearly, as a Bureau Director
are a public employee as that
. §402. As such, your conduct
Goodman, 86 -506.
in the Office of the Auditor
term is defined in the State Ethics
must conform to the requirements
Generally, the Ethics Act provides 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
he is associated. 65 P.S. 403(a).
While the State Ethics Act does not present a per se or absolute prohibition
upon a public employee or official simultaneously serving in another position
of employment, the above provision of the law would prohibit a public employee
from using his office to obtain a financial gain for himself or a business
with which he is associated. An individual, in such a position, would also be
prohibited from using confidential information obtained in and through his
public position for similar purposes. Thus, you may not use any information
obtained in your current position of public employment, or the position itself
in order to obtain any financial gain for yourself or for a business with
which you are associated. Because you have not indicated the nature and type
of employment in which you may be engaging, it is difficult to determine the_
potential possibilities that could develop in this situation. Generally, you
should abstain from participating in any matter as an employee of the Auditor
General's Office that would somehow relate to your private employment. If,
for example, you are privately employed by an entity and you are responsible
for auditing or otherwise performing a public function in relation to that
entity you must abstain from such participation. In addition thereto, your
abstention and the reasons therefore, must be appropriately noted and
recorded. If, however, you were employed by an entity or in a capacity which
has no possible relation to your position of public employment with the
Commonwealth of Pennsylvania, then the Ethics Act would place no per se
prohibitions upon your activity in that respect. Similarly, you may not use
your current position, including the facilities, equipment, personnel or
materials in order to advance your private endeavors.
The Ethics Act also allows this Commission to address other areas of
possible conflicts of interests. 65 P.S. §403(d). The parameters of the
types of activities encompassed, by this particular provision of law, are
generally determined through a review of the purpose and intent of the State
Ethics Act as set forth in the preamble thereto. Generally, the Ethics Act
was promulgated in order to insure the public that the financial interests of
Mr. Ronald D. Brand
October 28, 1986
Page 3
their officials and employees do not conflict with the public trust. 65
P.S. §401. Such a conflict can develop, in any situation, where an individual
attempts to serve one or more interests that are adverse. Alfano, 80 -007.
Therefore, you must avoid all conflicts of interests in relation to your
position of public employment. While this Commission cannot envision every
potential situation that may arise, you are advised that the further advice of
this Commission may be necessary in the event that such a conflict or question
should arise.
In addition to the foregoing, the State Ethics Act also provides as
fol lows:
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).
Reference is made to this particular provision of the Ethics Act not to imply,
that there has or will be some implication of this particular provision of
Act but merely to provide a complete response to your question.
Conclusion: Generally, the State Ethics Act presents no per se or absolute
prohibition upon the simultaneous service by the Director of the Bureau of
Liquor Audits, in the Office of the Auditor General, and as an employee in the
Liquor Industry. That individual so serving, however, must abstain as a
public employee from participating in any matter relating to his position of
private employment. In addition, you must avoid other conflicts of interests
as they develop. In this respect, further advice of this Commission could be
necessary as you have provided no specific details regarding the type of
employment in which you may be engaged.
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.
Mr. Ronald D. Brand
October 28, 1986
Page 4
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.
Si nc ly,
John J. 'ontino
Gen- -. Counsel