HomeMy WebLinkAbout87-518 FortnaSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
February 27, 1987
ADVICE OF COUNSEL
Nancy L. Fortna
R.D. #2
South Mountain Estates
Shippensburg, PA 17257
Re: Conflict of Interest, Public Employee Participation in Election
Dear Ms. Fortna:
This responds to your letter of January 23, 1987, wherein you
advice of the State Ethics Commission.
87 -518
Campaign
requested
Issue: Whether the State Ethics Act presents any prohibition upon
employee's participation in an election campaign.
Facts: You currently serve as an Associate Archivist in the Archives and
Records Section of the Pennsylvania State Archives. You further advised that
your father, Earl D. Peters, is running for Franklin County Commissioner. You
have indicated that you are interested in participating in your fathers
election campaign. In this respect, you would be involved in preparing
mailing lists, stuffing envelopes for bulk mailings, making telephone calls to
individuals, passing out campaign literature as well as voting registration
applications, providing transportation to individuals who are unable to
transport themselves to the poles and otherwise participating in the
activities of the campaign.
In your position with the Commonwealth, you are generally involved in
preparing revising and updating records retention and disposition schedules
for consideration by county and local government records committees. Work in
this capacity involves surveying files in county and municipal offices,
consulting with appropriate officials on the use of records and analyzing
their administrative legal financial and historic values to determine
appropriate retention periods. You are involved in providing mail, telephone
and on -site assistance to local record constodians and you also provide advice
and assistance in all phases of archives work. You coordinate and oversee all
arrangements relating to meetings of the county and local records committees.
You are also involved in processing records disposition requests received from
county and municipal record constodians in accordance with guidelines approved
by their respective committees. You have requested the advice of the State
Ethics Commission in relation to whether the State Ethics Act would present
any prohibitions upon your contemplated activity as outlined above.
a public
Nancy L. Fortna
February 27, 1987
Page 2
Discussion: For the purpose of this advice, we will assume that you are a
public employee within the purview of the State Ethics Act and thereby
required to conform your activities to the requirements thereof. 65 P.S.
§402. Additionally, it should be noted that the instant advice will address
only the issue of your conduct as reviewed under the State Ethics Act. This
Commission will not issue advice regarding your activities within the purview
of any other code of conduct, law, or regulation such as the Governor's Code
of Conduct or any other statutory promulgation.
Generally, the State 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).
Within the above provision of the Ethics Act, you, as a public employee, may
not use your position that you currently hold in order to advance the campaign
activities of your father. You may not use confidential information obtained
in your public position for similar purposes. As a result of the above
provision of law, this Commission has, in the past, determined that a public
employee may not use, for example, the personnel, equipment, facilities, mails
or other benefits of public office to advance an election campaign. See
Cessar, 82 -002; Fee, 86 -542; McElrath, 85 -009.
The Ethics Act, however, places no absolute or per se prohibition upon
your participation in an election campaign even though you are currently
employed by the Commonwealth of Pennsylvania.
The Ethics Act does provide that this Commission may address other areas
of possible conflicts. 65 P.S. §403(d). Within this provision of law, the
Commission has determined that a conflict of interest arises any time a public
employee attempts to serve one or more interests that are adverse. Thus,
while this Commission cannot envision every potential conflict of interests,
if a situation arises where such a conflict is occasionsed, then you are
advised to seek the further advice of this Commission. A conflict of
interests for example, could arise if you in your position as a public
employee, were called upon to take official action in relation to the county
wherein your father was running as a public official. In this respect, it
would be advisable to abstain from participating, as a public employee, in any
matter relating to the Franklin County Commissioners in light of the fact that
Nancy L. Fortna
February 27, 1987
Page 3
your father is currently running against the incumbent public officials in
that county. In this respect, you would not be called upon as a public
employee to take any action of an official nature in relation to the
individuals against whom you are campaigning. Your abstention in such matters
should be appropriately recorded and your agency should be advised as to the
reason for such abstention.
If the above conditions are met in the event that such is necessary, then
the Ethics Act would place no absolute or per se prohibition upon your
participation in your father's election campaign. Once again it is noted,
that the advice outlined herein pertains only to the requirements of the State
Ethics Act.
Conclusion: The State Ethics Act presents no per se prohibition upon a public
employee's participation in an election campaign. As a public employee, you
must conform your conduct to the requirements of the State Ethics Act and not
use your public position or any confidential information obtained therein to
advance the campaign. Similarly, you must avoid all other conflicts of
interests.
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
ont i
Act g General Counsel