HomeMy WebLinkAbout02-551 ShaheenTravis Shaheen
P.O. Box 213
Clinton, PA 15026
Dear Mr. Shaheen:
ADVICE OF COUNSEL
April 12, 2002
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
02 -551
Re: Conflict; Public Official /Public Employee; Constable; Private Employment or Business;
Private Investigator.
This responds to your received on March 14, 2002, by which you requested advice
from the State Ethics Commission.
Issue: Whether a Pennsylvania State Constable is prohibited or restricted by the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., from
working with, being employed by or associated with a business /person in a private capacity in
addition to public service.
Facts: You are a Constable. You ask whether, while serving as a Constable, you may:
(1) work as a private investigator for a private firm under the firm's license; or (2) pursue a
private investigator's license.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (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 requestor 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 disclose all of the material facts relevant to the
inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the
requestor has truthfully disclosed all of the material facts.
As a Constable, you are a "public official" as that term is defined under the Ethics Act,
and hence you are subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
§1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
Shaheen, 02 -551
April 12, 2002
Page 2
§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 1103(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 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 as to matters involving the business with which the public official /public
employee is associated in his private capacity, such as the review /selection of its bids or
proposals, Gorman, Order No. 1041.
Although the Ethics Act would not prohibit you from serving as an investigator under
your own license or a private firm's license while holding the position of Constable, there
could be certain situations wherein a conflict of interest would arise. For example, if you were
engaged to perform investigative work for an attorney who defended individuals in Protection
from Abuse cases, as a constable responsible for serving protection orders, you would have
a conflict of interest as to such matters. Similarly, if you were hired by an individual who, at
some point in time, was named as a defendant in a criminal or civil action, 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 abstain from
participating in any matter, as a constable, that in any way would relate to activities with
Shaheen, 02 -551
April 12, 2002
Page 3
which you may have been involved as a private investigator. See, Ernst, Advice 00 -526; See,
also, Babish, Advice 86 -592.
This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics
Act. It is expressly assumed that there has been no use of authority of office for a private
pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised
that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer
to a public official/public employee and no public official /public employee shall solicit or
accept anything of monetary value based upon the understanding that the vote, official
action, or judgment of the public official /public 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.
The propriety of the proposed conduct has only been addressed under the Ethics Act;
the applicability of any other statute, code, ordinance, regulation or other code of conduct
other than the Ethics Act has not been considered in that they do not involve an interpretation
of the Ethics Act.
Conclusion: As a Constable, you are a "public official" subject to the provisions of the
Ethics Act. Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., would not preclude you from serving as an investigator under your
own license or a private firm's license while holding the position of Constable, subject to the
restrictions and qualifications as noted above. However, as a public official, you would not be
permitted to use the authority of your public position -- or confidential information obtained by
being in that position -- for the advancement of your own private pecuniary benefit or that of a
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 enforcement
proceeding initiated by the Commission, and evidence of good faith conduct in any other civil
or criminal proceeding, provided the requestor has disclosed truthfully all the material facts
and committed the acts complained of in reliance on the Advice given.
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.
Sincerely,
Vincent J. Dopko
Chief Counsel