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Home My WebLink About93-621 JackSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11 470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 19, 1993 Larry Jack 93-621 9 Beaver Road Hershey, PA 17033 Re: Conflict, Public Official /Employee, Research Analyst, House of Representatives, Private Employment or Business, Substitute Teacher. Dear Mr. Jack: This responds to your letter of November 5, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether a Research Analyst for the Pennsylvania House of Representatives 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 currently are employed by the Pennsylvania House of Representatives as a Research Analyst. You have been employed by the House as a Legislative Aide or Research Assistant for the past twenty years. You are also certified in Pennsylvania as a teacher of special education and elementary education. You seek an advisory from this Commission as to whether you may use annual leave accumulated in your position as Research Analyst to teach in a school district in Pennsylvania on a substitute basis. Discussion: As a Research Analyst for the Pennsylvania House of Representatives, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. 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. Larry Jack November 19, 1993 Page 2 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 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, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may Larry Jack November 19, 1993 Page 3 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. In cases involving the utilization of government annual leave for private business activities, caution must be exercised to ensure that there is no transgression of the Ethics Law. The Commission found violations of the Ethics Law in Cohen, Order No. 610 -R, and Dorrance, Order No. 456, based upon improper use of leave or government facilities. In Cohen, the respondent, a Commonwealth attorney, was instrumental in initiating a program whereby attorneys for the Securities Commission could serve as arbitrators in county and federal courts, subject to certain conditions, one of which was that all time served as an arbitrator must be charged to annual or personal leave. Respondent then claimed sick days and used paid Commonwealth sick leave to sit on arbitration panels and to be compensated for such service. The Commission held that the respondent misused his public office by claiming and being paid for bogus sick time when he was in fact serving on arbitration panels for which he was also receiving payment. While serving on the arbitration panels, in and of itself, did not constitute a violation of the Ethics Law, the misuse of paid sick leave to obtain a financial gain from other employment was in violation of the Ethics Law. In Dorrance, the Commission held that there was a violation of the Ethics Law where an attorney from the Department of Public Welfare used facilities, materials and personnel of his governmental employer to complete legal work as a private attorney. In that case, the financial gain received by the public employee was the cost of the expenditures for materials, postage, and secretarial labor to process his private legal work. Subject to the limitations as noted above, the Ethics Law would not prohibit you from using annual leave to substitute teach for a school district. Larry Jack November 19, 1993 Page 4 The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other 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 is any law, regulation or rule that might preclude you as a legislative employee from engaging in such activity. Conclusion: As a Research Analyst for the Pennsylvania House of Representatives, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications noted above. 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). cerely, Vincent J. - Dopko Chief Counsel