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Home My WebLink About94-508-S ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 20, 1994 94 -508 -S Re: Conflict, Public Official /Employee, Private Employment or Business, Representative for Commission A, Use of Authority of Office or Confidential Information, Clients, Parties to Commission A Complaints, Closed Cases. This responds to your letter of April 4, 1994, in which you requested confidential supplementary advice from the State Ethics Commission. Issue: Whether a Representative for Commission A 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: You request supplemental advice for Confidential Advice of Counsel, 94 -508, dated February 8, 1994. Accordingly, the facts set forth therein are incorporated herein by reference. You now request supplemental advice as to whether you would be permitted, under the State Ethics Law, to take as a client an individual who was a party in a discrimination complaint which you investigated, and who later contacted you, after the case is closed askipg to represent them in a wholly unrelated matter before a tribunal other than Commission A. You believe that this situation would not be the use of authority tg obtain private business for two reasons: first, the matter for which the giient seeks representation is not a matter before cppistis§ion A; a?I d sepond f the individual contacted you. You did not use your authefity to influence the decision. You state that what occurs is that one of the parties has a positive impFession of your over -all =impotence, ability to negotiate, etc., acid later, after the case► in which that party was involved is closed, contacts you concerning other matters. Confidential Supplementary Advice, 94- 50$, - - S April 20, 1994 Page 2 Based upon the above, you request supplemental advice from the State Ethics Commission. Discussion: As Representative -for, Commission A, you are a public employee as that term is defined under. the Ethics Law, and hence you are subject to the prov4 s:i ona. of that. law. Section 3(a) of the Ethics, Law provides: Section 3. Restricted Activities. (a) Nm public• official or public employee shall engage in conduct; that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section. 2.. Definitions. "Conflict or cP,nflict of interest." Use by a public offtctal or public employee of the authority of his offi.ee 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 ] tsines 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 genera,} public er 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 t . to a particular public office or position of public- employment, "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. Oc • • r • . Confidential Supplementary Advice, $4 -50$ -S April 20, 1994 Page 3 In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employe'e 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. In responding to this request, it is noted that the general restrictions, prohibitions and qualifications set forth in Advice 94 -508 apply in this case as well and such are incorporated herein by reference as if set forth fully. In applying the provisions of the Ethics Law to your present inquiry, Section 3(a) of the Ethics Law prohibits public employees from using the authority of public employment for the private pecuniary benefit of the public employee himself or a business with which he is associated. Thus, a conflict of interest would arise if you were to use your position as a Representative for Commission A to obtain private clients. In this case; howe you state that you do not use your position, but that these individuals came to you voluntarily, after their Conimi'ssioil . case is closed. Based upon this factual assertion, the Ethics Lata ' wb`u.d not prohibit you from represe t}' 'these individXals in 'unrelated matters before- -a tribe i b' �er than Comitussion''A. As an attorney in government, e howevx; he potential exists for using office to obtain private dlient a su"h use of office for the receipt of a' private pest }a ry `enefit is rohihited under the Ethics Law. Therefore, you are ad`,r' sed to exxi extreme caution so as to conform your conduct to the provisions of the Ethics Law. Finally, as'noted above, you are subject to the provisions of Section 3,01a and 3(c) o• the Ethics Law, which apply to everyone. Sections 3 and'3(c) of the Ethics Law provide in part that no persom shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based`uppon the understanding that the vote, official action, or judgement . of the-- public official /employee would influenced thereby. The propriet of the proposed conduct has only been addressed 1 the Ethics Zaw; the applicability`of any other statute,' Code, or nce, regulation or c5ther code of `conduct oth than '•the Et c taw has not `ben cod sidered' in that they do not invdlve an int ;r t i`e thics Law . pecifically not =addressed herein is the ,pp1icab1ity of the City._ ; Code - ''the •fti1e §5 n . t .s. Professional Co tuct. Conclusion: 4,92tepresektative for .Commission ,A, you are a public Confidential Supplementary', April 20, 1994 Page 4 40894- 598 -S cerely, employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not ,participate in that matter and the disclosure requirements of Sectiox 3 (j) of the Ethics Law as outlined above must be satisfied. Under Section 3(a) of the Ethics Law, you would not be prohibited from representing individuals, who previously had a case with Commission A, in unrelated matters before 'other tribunals after their Commission Abase was cloised, provided you did not use the authority of your public employment to obtain these individuals as your private clients.-- Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 4yice is a complete defense in any enforcement proceeding initiated by the Commission, and �s evidence of good faith' conduct in any. other Civil or crifuinal proceeding, providing requestgr has disclosed truthfully all the material facts and cOmmitted acts complained of in reliance on the Advice given. This letter is a public record and;•'ill be made available as such .T, r Finally, if you disagree with this Advice or < :•f you have any reason to challenge same, you may appeal file Advice to the full Commission. A personal appearance before the Comfii§sion will be -scheduled and a - ;formal Opinion will be issued by the Commission. Any such appeal must be in writin and must, be actually received at the Commisdion within fifteen (1 ), days ofthe, date of this A�dvI pursuant to 51 Pa.�Code §13.20 ?,. The appeal may be received at the Commission by hand delivery, United States mail, delivery servile, or by FAX transmission (717=x87- 0806). Vincent Do • ko C1iiet Counsel;