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HomeMy WebLinkAbout94-525 GeigerSTATE ETHICS COMMISSION 309 FINANCE BUILDING P O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 16, 1994 F. Edward Geiger, III 11 Kingswood Drive Mechanicsburg, PA 17055 94 -525 Rea Conflict, Public Official /Employee, Senior Policy Analyst, Office of Policy Department, Department of Community Affairs, Private Employment, Preparation of Paper on Census Data. Dear Mr. Geiger: This responds to your letter of February 10, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether a Senior Policy Analyst for the Office of Policy Development with the Department of Community Affairs is prohibited or restricted by the Public Official and Employee Ethics Law from working or being employed in a private capacity in addition to public service. Facts: You are a Senior Policy Analyst for the Office of Policy Development with the Department of Community Affairs (DCA). You also are the primary author of the Comprehensive Housing Affordability Strategy which is required by the United States Department of Housing and Urban Development to be prepared in order to receive federal housing funds administered by state government. You are knowledgeable about census data and its uses for analyzing housing and community development issues. You recently received a letter from the National Research Council's. Committee on National Statistics requesting you to prepare a short paper on the subject of the need for small area data, the relationship of the decennial census to the American Housing Service and the data needs of small communities and rural areas. You have submitted the entire letter which is incorporated herein by reference. You state that you would use non -work hours to complete the paper and draw from your personal knowledge of census data and how data could be improved to analyze housing and community development issues. Geiger, III, F. Edward, 94525 March 16, 1994 Page 2 You state that you have been offered $500.00 compensation for preparing this paper. Accordingly, you request an advisory from the State Ethics Commission. Discussion: As Senior Policy Analyst for the Official Policy Development of the Department of Community Affairs, 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 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall Geiger, III, F. Edward, 94 -525 March 16, 1994 Page 3 solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee Mould be influenced thereby. Reference is made to these provisions of the la* 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, it is noted 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 or confidential information 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. Thus, under the provisions of the Ethics Law, as a public employee, you may not use your public position, or any confidential information obtained therein, to secure financial gain for yourself. The Ethics Law could be implicated for example if you were to market this paper utilizing your official title and position with DCA, Hensler 80 -746. Similarly, you may not employ any of the personnel, facilities, or other materials of that Department for the purpose of preparing or advancing the paper. You do not indicate in your letter what, if anything, DCA does in relation to the area of focus of your paper. Accordingly, with regard to Section 3(a) of the Ethics Act, it is reiterated that you may not use any confidential information that you are aware of by virtue of your employment with DCA. Such would be so regardless of the specific manner in which DCA receives or obtains such information. Holtz, 84 -530; Simon, 84 -036. The Commission previously has raised concerns regarding the type of activity addressed herein, In addition to the foregoing, the financial interests of a public employee may not present a conflict with the public trust. Fritzinger, 80 -008. While the Ethics Act presents no absolute prohibition on the activity that you have proposed, that activity moist be reviewed in light of these Geiger, III, F. Edward, 94 -525 March 16, 1994 Page 4 concerns. In your position faith dcA.you may be responsible,• in parr,' for policy deve'lopme it in oert &!i aftve whim ate the suble.'t- of your proQ &d pa''•pef.• ff , i pct, 151;14 ►i- ' you. reamer' 144: your' public emi91.6ymetit fifir tidie is idlealcidal t slut 11mi:c'e5a this exedt research, arial`ysis, arnd p imotio which ices d tctt4eiorir yo xx. paper, t i'e d gueefi'o6 6i a 66fiflic t aS Ii1eSt Mar arid. Mils is so be5edlide in s I. 1i & f`it t 161 it W ] pear' ee thov4h you would be iit it zing yoii€ p 1 a 1cayAiei t t d° a ems' prepare your paper, whi -c"h would- eo" r it to a pikeiliiibited See eit Cb 'nfi4e► %i•31 .infoFination for the redeipt of a , p vate p€eiini fy wit: i�A sucli a. sitthation it wot l4 4i' ffiai}it to tepaZdite_titet fetra'Lce - you were a§ a iii etp],oyee and that which you were p406 fining in aiid at 0 i , S4 -036. tor the faltpasdt 6€ this adVide, hOWever, it is asst, that y®iif work for DEA is 6ie&rly digtingi ishable9 from that which will Sr& tfre subje t of kalif papet, Tefefoge, in that situation, there *& 1d be no pfeii bi tion @ft the a6titti:ty you propose See - 10t6hinits z , OYder 179 and Millet/ A4viae 85 -S36. the f ropfietj of the proposed ce nduct has only been addressed 'iinerief 61te, kt;hi:es Laic f the appii@abiii€y of any antler ' statute, code, or ifiatieet regitiati©n of @c hef @ode of cOnduCt Other than the €irr"s has net Men cOhaidefed in that they do not involve an ifrtei ifetatioh et the Ethi@e Spadificai1y not addressed herein is the ap}51isaf ility 6f ti ve or ` s Code of Conduct. 61 a usiori- �,s a Senior Poiidy Analyst for the Office of Policy •bev`eiepa'tetitr -with the "'Depaftine1 t of 6 unity Affairs, you are a eMployee subject to the prWWigiOns Of the Ethics Law. 9 @eti6h 3(a) of the Ethics Law wdtild note preclude! you from outside efpiOyiiefi €IbUsiness activity •subjeet t o the restrictions and 44alifieatidns as noted above: While the Ethics Law would not fahibitr yeti ff6f pieparing the paper for the National. Research eduheii and fee @iVing @dtpensation, you, may not use Confidential thforiilatieft that yah ate &Wefe of by virtue of your public ei{iployliefit : Mien world be the impto p er use of confidential infeEhlati en ieE a private pecuniary benefit. Lastly, the propriety ctf the 15F6pased oorlflUet has Wily been addreSeesd under the Ethics flakeuaht tb section 1(111# this Advice is a ooAtplete defense iii fifty dhie @eii nt proceeding ihitiatred by the Commission, and dir"ideftEe Of goad faith eehdtiet in any other civil or criminal p se eddifigs pgavidiht tie reVestor has disclosed truthfully all the iteitOkiai fd @n% and committed the acts complained bf in reliance oh the Min:ft Min: 4iNieii Geiger, III, F. Edward, 94 -525 March 16, 1994 Page 5 such. This letter is a public record and will be made available as 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 fifteen (15) days of the date cif 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). S' cerely, 1 Vincent 3; Dopko Chief Counsel ;• v q 1 A