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HomeMy WebLinkAbout95-552 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470- TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 19, 1995 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that 95 -552 Re: Conflict, Public Official /Employee, Private Employment or Business, General Assembly. This responds to your letter of March 17, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether a member of the 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: Prior to his election to the General Assembly, A owned and operated an automobile repair business for approximately twenty -one years as a sole proprietorship. The repair business is a licensed Pennsylvania Inspection Station. After being elected, the Representative restructured the management of his business to limit his involvement to signing checks and checking that all bills are being timely paid. A does not serve on any committees that have oversight responsibility for Department of Transportation regulations. You ask whether continued ownership and /or operation of the repair business violates the Ethics Law. You also ask if the management restructuring and refraining from serving on committees that have oversight responsibilities for PennDOT regulations sufficiently insulate A from possible Ethics Law violations or are further restrictions required. Discussion: As a Representative in the General Assembly, A is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Confidential Advice, 95 -552 April 19, 1995 Page 2 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. "Immediate family." A parent, spouse, child, brother or sister. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 Confidential Advice, 95 -552 April 19, 1995 Page 3 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 been 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 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. The general rule is that when a private employer or business has a matter pending before the public officials'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 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 effect with the person recording the minutes. 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 recommendations on matters which relate to the business /private employer Confidential Advice, 95 -552 April 19, 1995 Page 4 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. 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 87 -001, the Commission reviewed Article III, Section 13 of the Pennsylvania Constitution dealing 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. Corrigan 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. The Commission has in prior cases, however, 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); Freind, Order No. 800 (Use of district office for private practice of law); Rieger, Order No. 680, (Use of house stationery, postage, equipment, staff and district office for re- election campaign activities); Fox, Order 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). Turning now to your specific questions, you ask whether continued ownership and /or operation of the automotive repair business violates the Ethics Law. Subject to the qualifications noted above, continued ownership and /or operation of the automotive repair business is not prohibited by the Ethics Law. You also ask whether the management restructuring of the automotive business sufficiently insulates the Representative from possible Ethics Law violations. The management restructuring of the business does not affect the Representative's exposure under the Ethics Law. Confidential Advice, 95 -552 April 19, 1995 Page 5 Regardless of the management structure, if the automotive repair business is a "business in which [the Representative] or a member of the [Representative's] immediate family is a director, officer, owner, employee or has a financial interest," that business is a "business with which [A] is associated." 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 herein is the applicability of the rules of the General Assembly. Conclusion: As a member of the Pennsylvania General Assembly, A is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude him from outside employment /business activity subject to the restrictions and qualifications as noted above. While normal circumstances would require him to abstain from participation in matters relating to his outside 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 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 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 Confidential Advice, 95 -552 April 19, 1995 Page 6 be received at the Commission by hand delivery, United States mail, delivery service, or by FAX' 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. Sincerely, V k;■-trk Vincent Dopko Chief Counsel