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HomeMy WebLinkAbout93-606 RomainSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 27, 1993 Robert M. Romain, Esquire Baer, Romain & Abramson 1288 Valley Forge Road Suite 63 P.O. Box 952 Valley Forge, PA 19482 -0952 93 -606 Re: Conflict; Public Official /Employee; Member of General Assembly; Private Employment or Business; Part -time Employment with a Pennsylvania Public Utility. Dear Mr. Romain: This responds to your letter of September 21, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether a Member of the Pennsylvania General Assembly is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You represent a Member of the Pennsylvania General Assembly. This individual wishes to seek part -time employment with a public utility which does business in Pennsylvania. This Member votes on issues involving the Pennsylvania Public Utility Commission. Based upon the above, you request an advisory from the State Ethics Commission as to whether the Public Official and Employee Ethics Law presents any prohibitions or restrictions on this Member's perspective, part -time employment with such public utility. Discussion: As a Member of the Pennsylvania General Assembly, the individual is a public official as that term is defined under the Ethics Law and is subject to the provisions of that law. Romain 93 -606 September 27, 1993 Page 2 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is Romain, 93 -606 September 27, 1993 Page 3 made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, it is noted that Section 3(a) of the Ethics Law does not prohibit public officials /employees from private business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. The general rule is that when a private employer or business has a matter pending before the public official's governmental body or if that individual as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion No. 89 -024. In those instances, it would be necessary that the public official be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that the public official abstain from participation but also file a written memorandum to that affect with the person recording the minutes. In this case, the private business with which this Member would be associated is the particular public utility. Under normal circumstances this Member would not be prohibited from participating in such private business activities, but whenever a matter comes before the Member relating to this business, the Member would be required to abstain pursuant to Section 3(j). As a Member of the Pennsylvania General Assembly, however, the issue presented herein must be viewed not only within the parameters of the Ethics Law, but also within the parameters of the Pennsylvania Constitution. In Corrigan, Opinion No. 87 -001, the Commission reviewed Article III, Section 13 of the Pennsylvania Constitution dealing Romain, 93 - 606 September 27, 1993 Page 4 with a member's vote being denied when a personal interest is involved. It was determined that the constitutional proscription controlled and the Ethics Law would lack the jurisdiction to address the matter. Corriaan further reviewed Article II, Section 15 dealing with privileges. The Commission stated that the State Constitution provision was similar to the United States Constitution counterpart. Accordingly, Members of the General Assembly could not be questioned regarding any legislative action. Legislative action includes introduction, consideration, debating, voting, enactment, adoption or approval of legislation. Finally, the Commission cautioned that the Ethics Law did apply to non - legislative activities and that all rulings on such issues continued in effect. 1 The Commission has, in prior cases, ruled on the issue of use of public office in violation of the Ethics Law in relation to non - legislative action and the application of the law in such situations applies here. See, e.g., Olasz, Order No. 851 (Use of lease of vehicle for legislative purposes to obtain pecuniary benefit other than compensation provided by law) ; Friend, Order No. 800 (Use of district office for private practice of law); Riecrer, Order No. 680 (Use of House stationery, postage, equipment, staff and district office for re- election campaign activities); Fox, Order No. 379 -R (Statements of Financial Interests); Cessar, Opinion No. 82 -002 (Use of district office for campaign purposes); Seltzer, Opinion Nos. 80 -044, 80 -057 (One -year representation restrictions); and Geist, Opinion No. 79 -011 (Use of office for private business ventures). The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other law, statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Legislative Code of Conduct. Conclusion: As a Member of the Pennsylvania General Assembly, the individual is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude private employment /business activity subject to the restrictions and qualifications as noted above. While normal circumstances would require the Member to abstain from participation in matters relating to private business and to comply with the disclosure requirements of Section 3(j) of the Ethics Law, as a Member of the Pennsylvania General Assembly, activities which relate to legislative actions, defined as the introductory consideration, debating, voting, enactment, adoption or approval of legislation are constitutionally controlled. Such legislative actions are exempt from the purview of the State Ethics Law and the State Ethics Commission. However, non - legislative activities are Romain, 93 -606 September 1993 Page 5 restricted by the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). Vincent J. Dopko Chief Counsel �r�