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HomeMy WebLinkAbout85-016 HershockI. Issue: II. Facts: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 July 26, 1985 OPINION OF THE COMMISSION Mr. Michael H. Hershock, Ex. Di r. 85 -016 Appropriations Committee House of Representatives Room 512, EG Main Capitol Harrisburg, PA 17120 Re: House of Representatives, Employee, Outside Employment, Conflict of Interest Dear Mr. Hershock: This responds to your letter of June 11, 1985, wherein you requested the advice of the State Ethics Commission. Whether there is any conflict of Interest or other prohibition under the State Ethics Act in your securing part -time employment with a former consultant to the House of Representatives when you currently are employed by that governmental body. You currently serve as the Executive Director of the Pennsylvania House of Representatives Appropriations Committee. In this position, your duties include preparation of the Commonwealth annual budget and all legislation necessary to enact it, including analysis and recommendation of the amount of ' money to be appropriated for each agency and program. Additionally, you act as the fiscal advisor to the House democratic leaders on all matters related to public spending and taxation, and you assist in the formulation of policy in these areas. You also are responsible for the recruitment, assignment, and day -to -day management of professional and clerical staff necessary to carry out the above responsibilities. Included within these management responsibilities are the operations of the committee's main office. Mr. Michael Hershock July 26, 1985 Page 2 In addition to the foregoing, you indicated that you were responsible for coordinating and drafting Pennsylvania's recent economic development legislation. You have recently been asked to accept a part -time position with Garfield Schwartz Associates in Washington, D.C., representing that firm in their work on economic develcpment contracts. This firm had been retained by the Pennsylvania House of Representatives, Democratic Caucus during the last session of the General Assembly. You worked with this consultant on the economic development legislation. You have indicated that Garfield Schwartz Associates was compensated through the House Democratic Leadership Appropriation. The contract was administered over two years ago and some work, such as reviewing final drafts, was completed in the spring of 1984. You finally indicate that the firm would prefer to employ your services in states ot!ler than Pennsylvania. You seek the opinion of the State Ethics Commission regarding what, if any, restrictions may be imposed if you were to undertake this employment. III. Discussion: As the Executive Director of the House Appropriations Committee in the Pennsylvania House of Representatives, you are a public employee as that term is defined in the State Ethics Act and, must therefore, required to conform to the requirements thereof. 65 P.S. §402; Evans, 84 -559. Generally, the Ethics Act provides that: Section 3 Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). This provision would not prohibit a public employee from obtaining private employment simultaneously with that person's public service. Within this provision, however, such a public employee could not use their public position or confidential information obtained therein to obtain financial gain other than compensation provided by law. Thus, within this provision, the Commission has determined that a public employee may not use the facilities, equipment, personnel, or time of their public employer to advance their private enterprise. Nelson, 85 -009; Cessar, 82 -002; Miller, 85-530. Mr. Michael Hershock July 26, 1985 Page 3 Additionally, in an effort to be complete, we note that a public employee may not accept anything of value, including a promise of employment, based upon an understanding that such employee's official action would be influenced thereby. 65 P.S. §403(b). As stated, we make reference to this provision, only to provide a complete response to your question. The State Ethics Act was generally intended to ensure that the financial interests of public officials and employees neither conflict nor appear to conflict with the public trust. 65 P.S. §401. In this respect, your private employment must not present a conflict with your public position. Not only must you avoid such a conflict, you must also avoid any appearance thereof. In this respect, you have indicated that the firm prefers that your services be rendered only in relation to contracts in states other than Pennsylvania. We believe that such a limitation would ensure compliance with the State Ethics Act. If you were to participate in projects in the Commonwealth, various questions regarding conflicts of interest could arise. For example, there would be no doubt that you could not represent the firm in its dealings with the House of Representatives. Additionally, a question could arise if you were to be called upon to represent the firm's dealings with another state agency, especially if you had or have any role in analyzing or recommending the annual appropriation for said agency. We do not address that question at this time but advise that if you were to represent that firm within the Commonwealth, you should seek the further advice of this Commission. We, at this time, will not address these questions as they do not appear to be at issue and as we cannot possibly envision each question that could arise. Finally, we note that our conclusions herein, only relate to our interpretation of the State Ethics Act and we have not reviewed your question under any other statute, code or regulation. IV. Conclusion: The State Ethics Act places no absolute prohibition upon your acceptance of employment with a private consulting firm while you are employed as the Executive Director of the House of Representatives Appropriations Committee. Various questions may need to be addressed in the event that you are called upon to represent this firm in relation to any matter involving the Commonwealth of Pennsylvania or an agency thereof. Mr. Michael Hershock July 26, 1985 Page 4 In addition, all income earned in your private employment, must be reported in accordance with Sections 404 and 405 of the State Ethics Act. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /sfb By the Com ission, HERB 'T CONNER Chairman