HomeMy WebLinkAbout87-625 ConwaySTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
October 22, 1987
ADVICE OF COUNSEL
Charles R. Conway, Esquire
4328 Old WM. Penn Highway 87 -625
Monroeville, PA 15146
Re: Conflict of Interest, Investigator, Office of Attorney General, Private
Detective
Dear Mr. Conway:
This responds to your letter of October 8, 1987, wherein you requested
the advice of the State Ethics Commission.
Issuer Whether the Ethics Act presents any restrictions upon a private
investigator while he is employed as an investigator with the Office of
Attorney General.
Facts: You state that Nick Roy Jr., is employed by the Office of Attorney
General as a Narcotics Agent II and is assigned to the Bureau of Narcotics
Investigation and Drug Control. You further state that Mr. Roy has filed a
Workmen's Compensation Claim against the Commonwealth of Pennsylvania, Claim
No. 180 -20 -0419, which was opposed by the Commonwealth as a non -work related
injury. The matter is before a Workmen's Compensation Referee, Floyd R.
Warren of Greensburg. You further state that effective July 10, 1987, Mr. Roy
is currently on leave of absence without pay but with benefits due to his
illness. It is further stated by you that the leave will be extended for an
indefinite period pending the outcome of the Workmen's Compensation Claim,
which is limited to 183 days. You further stated that Mr. Roy has filed, at
No. 43 Civil 1983 in Westmoreland County, an application to renew his private
detective license, which order was initially signed by the court but which now
is being opposed by the Office of Attorney General based upon an allegation of
a conflict of interest. You note that a hearing is scheduled on this matter
for Friday, October 16, 1987. As to the possible conflict of interest, you
state that Mr. Roy has not worked since the date of his injury on September 3,
1986 and that he has no intention of involving himself in any matter as a
Charles R. Conway, Esquire
October 22, 1987
Page 2
private investigator which would relate to his activities as a narcotics
agent. You also state that any pending investigations on which Mr. Roy worked
would have been completed and that he would have no knowledge of new
investigations. In concluding, you cite Babish, 86 -592, and request advice as
to whether there would be a conflict of interest for Mr. Roy to work as a
private investigator.
Discussion: As a Narcotics Agent II, in the Office of Attorney General's
Bureau of Narcotics Investigations and Drug Control, he is a public employee
as that term is defined in the State Ethics Act. 65 P.S. §402. As such, he
is subject to the requirements of 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
he is associated. 65 P.S. 403(a).
Within the above provision of law, no public official may use his public
office or employment in order to obtain a financial gain other than the
compensation that is provided for by law. He may not use any confidential
information obtained in his 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
position as a public employee. Similarly, he may not use the facilities or
authority of his position as an investigator of the Office of Attorney General
in order to obtain any benefit for himself or the firm which may employ him.
The use of that law enforcement authority, which is vested in him by virtue of
his public employment, in order to benefit or advance his 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
Charles R. Conway, Esquire
October 22, 1987
Page 3
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 client 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 he is a
publicly employed investigative officer. For example, if as a private
investigator he 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 his private
enterprise and his public position. However, if he will be engaging in
investigative activity which is not in any way related to the type of work
which he is /was doing as a public employee, then a conflict of interest might
only arise in a specific situation. In those situations, he must, of course,
act in accordance with the provisions of the State Ethics Act. A number of
situations may develop for example, in which he, as a public employee, would
be required to abstain. For example, if as a private investigator he is
performing work for a particular attorney or a particular individual and that
individual, at some point in time, becomes the subject of his investigation as
a public employee, or if the attorney for whom he has provided private work
represents someone who he is investigating or someone against whom he is
testifying, then he would have to abstain from participating in that matter as
a public employee. This, of course, could raise a problem in that if his
testimony would be required in a court of law for prosecution, he would be
placed in a difficult situation. Thus, it may be the better practice to
forego private employment from anyone with whom he was involved as a public
employe. 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:
Charles R. Conway, Esquire
October 22, 1987
Page 4
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 your client were to accept private employment for
example, from an attorney who represented an individual against whom your
client had proceeded as a public employee. As a result of the foregoing, he
should exercise caution in his private enterprises not only regarding the type
of activity in which he is engaged but regarding the individuals for whom such
activity is performed. In any event, when a situation develops where he would
be required to abstain as a public official, he must reveal that abstention to
his governmental body and have it appropriately recorded.
In addition to the foregoing, we remind you that your client, as a public
employee, is required to file a Statement of Financial Interests on an annual
basis. Included in his financial disclosure should be all sources of income
in excess of $500 and the identity of all business enterprises in which he has
a financial interests or in which he serves as an officer or di rector.
Finally, this Commission has not addressed this question under any other
statute, code, ordinance, regulation or code of conduct. Specifically, the
Office of Attorney General's Code of Conduct has not been addressed.
Conclusion: While the State Ethics Act presents no per se prohibition upon an
individual who is an investigator for a law enforcement agency in engaging in
outside private employment, the Ethics Act would prevent the individual from
using any confidential information obtained in his public employment to
benefit 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, he must abstain from participating in any matter or investigation
Charles R. Conway, Esquire
October 22, 1987
Page 5
that relates to an individual who has employed his private security firm.
This would include, not only the individual whom he is 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
his 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. He 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.
Sincerely,
t.v„A 0194
Vincent . Dopko
General Counsel