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HomeMy WebLinkAbout88-526 BaileyG. Alan Bailey, Esquire Pennsylvania Crime Commission ,.1100 E. Hector Street "Conshohocken, PA 19428 • STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 2, 1988 ADVICE OF COUNSEL 88 - 526 Re: Simultaneous Service, Crime Commission Executive Director and Adjunct Lecturer at Penn State tear Mr Bailey: r t This'responds to your letter of January 29, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon the Executive Director of the Crime Commission from also serving or being employed as an adjunct lecturer in criminology at Penn State. Facts: In your advice request you state that you are the Chief Counsel' of the Pennsylvania Crime Commission, hereinafter Commission, wherein the Executive Director Frederick T. Martens recently accepted a position as an adjunct lecturer in the criminology at the Penn State University at the Allentown Campus, _Ydu note that Mr. Martens has received the approval of the Commissioners as to this teaching position. You further state that when Director Martens applied to the Allentown Campus, he did not indicate that he was soliciting monies on behalf of the Organized Crime Control Institute, hereinafter Institute, at Penn State Main Campus, State College, Pennsylvania. You further note that Director Martens has taught at several universities both in New York and Pennsylvania and that he distributed his resume to a number of colleges and universities and received an offer from the Allentown Campus of Penn State.. You state that Director Martens did not discuss acquiring a positionw'th Penn State with any official at that University. You conclude by posing two questions under the Ethics Act. First you ask whether Director Martens may be employed and receive a salary from another state agency, namely Penn State University; secondly, you ask whether there is a conflict for Director Martens under the Ethics Act in receiving payment from Penn State in light of the fact that he solicits state and federal monies to establish an Organized Crime Control Institute at Penn State Main Campus. G. Alan Bailey. Esquire March 2, 1988 Page 2 Discussion: As Executive Director for the Crime Commission, Mr. Martens is a "public employee" as that term is defined in the Ethics Act. See 65 P.S. §402: 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public employee to obtain a gain or benefit for himself or a member of his immediate family or a business with which he is associated which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Comm. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Comm. , 531 A.2d 536 (1987). Thus, under this provision, a public employee may not use his public position to secure any financial gain for himself or a member of his immediate family or a business with which he is associated unless it is provided for by law. Domalakes Opinion, 85- 010. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if Mr. Martens were to serve both as a public employee and as adjunct lecturer. Basically, the Ethics Act does not state that it is inherently incompatible for a public employee to serve or be employed as an adjunct lecturer. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano Opinion, 80 -007. In the situation outlined above, he would not be se nv g entities with interests which are adverse to each other. G. Alan Bailey, Esquire March 2, 1988 Page 3 Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section Act cited above, which must be observed, a public employee must neither offer nor accept anything of value on the understanding or with the intention that the public employee's judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). However, under Section 3(d) of the Ethics Act, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public employee do not conflict with the public trust or create the appearance of a conflict with the public trust. In the instant situation, the Ethics Act would not preclude Director Martens from being employed and receiving a salary as an adjunct lecturer at the Allentown Campus of Penn State even though he solicits state and federal monies to establish the Organized Crime Control Institute at the Main Campus of Penn State. In the Yaw Opinion, 85 -011, the State Ethics Commission G. Alan Bailey. Esquire March 2, 1988 Page 4 determined that there was no per se prohibition under the Ethics Act for a school director to be employed by a community college which was sponsored by that school director's district, unless the school director was in a high administrative position as to his employment with the college. Director Martens is an adjunct lecturer in criminology and that position cannot be characterized as a high level administrative position with the college. The solicitation of state and federal monies to establish the institute at the Main Campus appears to be separate and remote relative to Director Martens' position as an adjunct lecturer at the Allentown Campus. The Commission has determined that whenever a pubi l c official has a remote outside interest, that does not transgress the provisions of the Ethics Act. See Markham Opinion, 85 -013. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Under Section 3(d) of the Ethics Act, in the unlikely event that some matter concerning Penn State University should come before the Crime Commission, Director Martens could not participate in the matter regarding Penn State and should notify his Commissioners in writing of his abstention in light of his employment with Penn State. Lastly, it must be noted that the propriety of his proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: As Executive Director for the Crime Commission, Mr. Martens is a "public employee" subject to the provisions of the State Ethics Act. As a public employee, he may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of Executive Director and adjunct lecturer. However, under Section 3(d) of the Ethics Act, he would have to abstain in matters relative to Penn State in the unlikely event the matters concerning Penn State would come before the Crime Commission. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii ), 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, providi ng the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. G. Alan Bailey. Esquire March 2, 1988 Page 5 This letter is a public record and will Finally, if you disagree with this Advi challenge same, you may request that the ful personal appearance before the Commission wi Opinion from the Commission will be issued. writing, to the Commission within 15 days of to 51 Pa. Code 2.12. be made available as such. ce or if you have any reason to 1 Commission review this Advice. A 11 be scheduled and a formal Any such appeal must be made, in service of this Advice pursuant Sincerely, CJ Vincent . Dopko, General Counsel