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Home My WebLink About95-550 BoyerHarry R. Boyer R.D. #2 Box 102 Newport, PA 17074 Dear Mr. Boyer: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 19, 1995 95 -550 Re: Public Employee /Official, County Commissioner, Newspaper Writer, Candidate. This responds to your letter of March 17, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether a candidate for public office is to be considered a "public employee" or "public official" under the State Ethics Law, and therefore, subject to the restrictions and prohibitions of the State Ethics Law. Facts: You are a candidate for County Commissioner in Perry County. You are also an outdoor writer for three local newspapers in Perry County. You state that you were told by the Ethics Commission staff that there was no conflict under the Ethics Law. However, you request a written reply of any conflict of interest under the Ethics Law concerning your employment with the newspapers and your candidacy. Discussion: The primary question to be answered is whether a candidate for public office is considered a "public official" as that term is defined in the State Ethics Law: Section 2. Definitions. "Public Official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to Boyer, Harry R., 95 -550 April 19, 1995 Page 2 otherwise exercise the power of the State or any political subdivision thereof. As a candidate for public office you are not a "person elected by the public or elected or appointed by a governmental body." Therefore, we conclude that as a candidate for public office, you are not considered a "public official" as that term is defined in the State Ethics Law. Hence, the Ethics Law does not prohibit or restrict the private employment of a candidate for public office except with respect to sections 3(b) and (c), which apply to everyone. Section 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 any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. If and when you are elected as a County Commissioner, you would be a public official as that term is defined under the Ethics Law, and hence you would be 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. 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 Boyer, Harry R., 95 -550 April 19, 1995 Page 3 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 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 outside 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. In the event that your private employer or business has a matter pending before the County or if you as part of such official duties would have to participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it would be necessary that you be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes. Boyer, Harry R., 95 -550 April 19, 1995 Page 4 In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. Lastly, 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. Conclusion: As a candidate for County Commissioner, you are not to be considered a public official as defined in the State Ethics Law. Accordingly, you are not subject to restrictions or prohibitions under the Ethics Law concerning private employment, except for Sections 3(b) and 3(c) which are applicable to everyone. As a Commissioner for Perry County, you would be a public official 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 as noted above. In the event that the employer /business has matters pending before the County, then you would not be able to participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. 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 Boyer, Harry R., 95 -550 April 19, 1995 Page 5 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. .A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail delivery service, or by PAZ transmission (717-787-0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Si cerely, Vincent ". Dopko Chief Counsel