The URL can be used to link to this page

Home My WebLink About00-526 ErnstDon Ernst RD #2 Box 2279 Saylorsburg, PA 18553 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL February 24, 2000 Re: Conflict; Public Official /Public Employee; Constable; Private Employment or Business; Private Investigator. Dear Mr. Ernst: This responds to your letter of January 19, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether a constable is prohibited or restricted by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., from serving as a licensed private investigator while holding the elected office of constable. Facts: You are a licensed private investigator. You plan to run for the elected office of Constable. You state that historically, there has been a restriction placed upon holding a private investigator's license and the office of Constable. Most recently, however, you learned that this restriction was lifted in several counties. You believe that each case is being treated individually in a "local rule" type determination. You request an advisory as to whether you may hold the elected office of Constable while being licensed as a private investigator. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully dilose all An n advisory of only affords defense to the extent the has truthfully disclosed An adviory ly all of the material facts. As a Constable, you would be a "public official" as that term is defined in the Ethics Act and hence you would d be subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Sections 1 103(a) of the Ethics Act provides: FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -526 Ernst, 00 -526 February 24, 2000 Page 2 65 Pa.C.S The defined as Section 1 103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. _ §§1103(a). following terms that pertain to conflicts of interest under the Ethics Act are follows: Section 1102. 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. The term 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." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. 65 Pa.C.S. §1102. In applying the above provisions of the Ethics Act to your inquiry, you are advised that Section 1 103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position -- or confidential information obtained by being in that position -- for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such Ernst, 00 -526 February 24, 2000 Page 3 as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity is as to matters involving the with which the the review /se ublic bil or pPoposals, associated in his private capacity, such Gorman, Order No. 1041. Although the Ethics Act would not prohibit you from holding the position of Constable while being privately employed as an investigator, there could be certain , if you situations wherein a ok for an attorney who defended indi iduals n otec ion t o perform investigative ou would from Abuse cases, as a constable responsible for serving protection orders, y an have a conflict at some a ointsn to time, matters. as a defendant in a or civil by individual who, at point as a constable responsible for serving process on that individual, you would have a conflict of interest as to such matter. In instances where a conflict would arise, you would have to ab activi activities with which you any may have been involved as that privat way would relate to investigator. See, Babish, Advice 86 -592. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is y enefit as prohibited by Section 1103(a) of the Ethics f a private pe cuniary hics A t pecuniary benefit Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall solicit cit or accept public cept anything of monet employee ry value based upon official /public employee the undr e thereby. Reference to these provisions of the employe would be influenced not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of an the y code, Ethics Act has not been considered u of conduct other than in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Constable, you would be a "public official" subject to the Ethi sions cs Act ("Ethics the Ethics A" ) , Act. 65 Pa C.S 1103(a) of seq.ewould ot Official preclude you Ethi ( ". n t ote de d above. However, ,nas a public yoffcial, the be perm itted I to use the nebove. Howe in that position of your a n -- for the advancement of your own private pecuniary benefit or that of a positio ad business with which you are associated. Certain situations could arise that would create a conflict for a constable engaging in private investigative work. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an Advice is a complete defense in any faith enfoent c uc t in a ny of e r civil or criminal nal by provided and the evidence equester has d disclosed losed conduct in any other c truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Ernst, 00 -526 February 24, 2000 Page 4 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 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 thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may 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 thirty (30) days may result in the dismissal of the appeal. erely, Vincent . Dopko Chief Counsel