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Home My WebLink About94-508 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 8, 1994 94 -508 Re: Conflict, Public Official /Employee, Representative for Commission A, Private Employment or Business, Attorney, Use of Authority of Office or Confidential Information, Practice of Discrimination Law. This responds to your letter of December 22, 1993, in which you requested confidential 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 are a Commission Representative for Commission A and investigate complaints of employment, housing and public accommodation discrimination. You have been employed by Commission A since B. This job involves the enforcement of anti- discrimination ordinances and statutes. You have recently passed the Pennsylvania Bar Examination and wish to develop your own legal practice during evenings and weekends. While you hope to practice discrimination law, your practice will not be limited to that. An Advisory Opinion from the Municipal Solicitor advises that you may practice law, including discrimination law, provided you do not practice before Commission A and provided you do not use any information not available to the public. A copy of that Opinion has been provided and is incorporated herein by reference. Further, you have submitted the Announcement /Bid of a Non - Competitive Position Opening for Commission Representative 1,Commission A Organizational Chart, a copy of the City Code, the Commission's Rules and Regulations, and the City Code of Conduct. These documents are also incorporated herein by reference. Based upon the above, you request an advisory from the State Ethics Commission. Confidential Advice, 94 -508 February 8, 1994 Page 2 D.scussion: As a 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 provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No 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 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.- "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 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 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall. gaffer to a public official /employee Confidential Advice, 94 -508 February 8, 1994 Page 3 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. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, we note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. You could not use your position or any confidential information obtained therein in order to assist your private practice of law or to obtain any benefit or advantage in your practice. In the event that your private business or clients have matters pending before your governmental body or if you as part of such official duties must participate, review or pass upon those matters, a conflict would exist. Miller Opinion 89 -024. In those situations, your duty to your private client would conflict with your public duty to Commission A. In those instances, it will be necessary that you be removed from that process and Section 3(j) of the Ethics Law would require that you abstain from participation and file a written memorandum to that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; Confidential Advice, 94 -508 February 8, 1994 Page 4 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as pet the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion : 89 -023. Accordingly, the Ethics Law would not prohibit you from: enc, gang in the practice of law, including discrimination law, hoWeiter, you cannot - participate in matters before Commission A relating to your private clients and your law firm, the business with which you are associated. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered =in that they do not involve an interpretation of the Ethics Lew. Specifically not addressed herein ±s the applicability of the City Code of Conduct or the Rules of Professional Conduct Conclusion: As a Representative for Commission A, you are a public employee subject to- the provisions of the Ethics Law. Section:3(a) of the Ethics Law would not preclude you from outside emploiment/litieiness activity subject to the restrictions and quali as noted above. In the event that your law firm or clients have matters pending before your governmental body, then you could not part-idipate in those matters and the disclosure requirements of Sect-iori- 3(j) of the Ethics Law as outlined above must be satisfied. Lastly, the propriety of the proposed conduct has only een addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good . faitr conduct in any other civil or criminal proceeding, providinj 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 wi th this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A persoiial before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal nlUst be in Writing and must be actually received at the Commissibd *Rhin fifteen (15) ditys of the date of This Confidential Advice, 94 -508 !' February 8, 2994 Page 5 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). Sincerely, 4 4 %As. c incent J. Dopko Chief Counsel