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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