HomeMy WebLinkAbout94-527 Blancett-MaddockDiane Blancett- Maddock
1415 Brownsville Road
Pittsburgh, PA 15210
Dear Ms. Blancett- Maddock:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783-1 610
ADVICE OF COUNSEL
March 17, 1994
94-527
Re: Conflict, Public Official /Employee, Assistant Chief Counsel,
Pennsylvania Human Relations Commission, Participation in
Political Activity, Non - Working Hours.
This responds to your letter of February 13, 1994 in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a public employee
from participating in political activities during non - working
hours.
Facts: You inquire, as a non -civil service employee working as an
Assistant Chief Counsel for the Pennsylvania Human Relations
Commission, as to whether you may participate in political
activities during non - working hours. Further, you state that you
were informed by Assistant Counsel that the Commission was not
aware of any prohibition laws, regulations, directives or policies
in this regard and that the Commission did not have jurisdiction
over your activities in this regard.
Accordingly, you request a written advisory as to the
applicability of the Ethics Law to your proposed conduct.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. §S407(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 P.S. $S407(10), (11). An
Blancett- Maddock, Diane, 94 -52
March 17, 1994
Page 2
advisory only affords
los d all of the material facts. the requester has
truthfully disclosed
to the extent your letter indicates the receipt of
telephonic advice, your letter is incorrect. Although the
Commission staff provides a public service by informing callers of
various provisions of the Ethics law, advisories are not issued by
telephone.
As Assistant Chief Counsel for the Pennsylvania Human
Relations Commission, 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:
action 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 bi. ianedipte 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 . r employment:" .The
actual power provided bylaw, the exer'cise.of
which ip necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
Blancett- Maddock, Diane, 94 -527 r�r
March 17, 1994
Page 3
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
solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgement of th0
public official /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.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procedure
shall be employed. Any public official or
public employee who in the discharge of his
official duties would be required to vote on a
matter that would result in a conflict of
interest shall abstain from voting and, prior
to the vote being taken, publicly announce and
disclose the nature of his interest, as a
public record in a written memorandum filed
with the person responsible for recording the
minutes of the meeting at which the vote is
taken, provided that whenever a governing body
would be unable to take any action on a matter
before it because the number of members of the
body required to abstain from voting under the
provisions of this section makes the majority
or other legally required vote of approval
unattainable, then such members shall be
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three - member governing body of a political
subdivision, where one member has abstained
from voting as a result of a conflict of
interest, and the remaining two members of the
governing body have cast opposing votes, the
member who has abstained shall be permitted to
vote to break the tie vote if disclosure- is
made as otherwise- provided herein.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain and to publicly d±s the
abstention and reasons for same, both orally and by =ling a;
Slancett- Maddock, Diane, 94 -527
March 17, 1994
Page 4
written memorandum to that effect with the person recording the
minutes or supervisor.
In the event that the required abstentions results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s) from conflict
under the Ethics Law, then in that event participmtiOn is
permissible provided the disclosure requirements noted above are
followed. ,S,ge_, M1ak , Advice 91- 523 -S.
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
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 activities do not
conflict with his public duties. Cry, Opinion 89 -013. Thus, a
public official /employee could not perform private activities 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 activities. In
addition, the public official /employee could not during government
working hours, solicit or promote such 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.
In the event that your private activities come before your
governmental body or if you as part of such of duties must
participate, review or pass upon such activities, a conflict would
exist. Miller, Opinion 89 -024. In those instances, it will be
necessary that you be removed from that process.
in such cases as noted above, Section 30) of the _Et ti :ens ,Law
wta'u].d require not only
that you abstain from participation x"t also
file a written memorandum to that effect with the person xteCgWaing
the minutes orytmir sir.
;In nary„ the Ethics Law .would restrict the trd
g.. Vhe use of amtbnxity of mice to obtain saw adv *my
private &rosiness or activity
2-. - utilization of vo ±i'' ntial lmformestIon gained through
public . position. •
3. participating in discussions., reviews , gar xecommesdatissis
Blancett- Maddock, Diane, 94 -523 $
March 17, 1994
Page 5
on matters which relate to the private activities which may come
before the governmental body and in such eases publicly announcing
the relationship or advising the supervisor as well as filing a
'written memorandum as per the requirements of Section 3(j) of the
Ethics Law, Brooks, Opinion 89 -023.
Accordingly, the Ethics Act places no absolute or per se
prohibition upon your participation in political activities even
though you are currently employed by the Commonwealth of
Pennsylvania. Therefore, if the above conditions are met to the
extent necessary, then the Ethics Act would place no prohibition
ipon your participation in political activities. Once again it is
ingted, that the advice outlined herein pertains only to the
requirements of the State Ethics Act. See Fortna, Advice 87 -518,
yitina, Advice 83 -602 and Beaston, Advice 83 -584.
• 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 Law. Specifically not addressed
herein is the applicability of the Governor's Code of Conduct or
the Civil Service Act.
Conclusion: As Assistant Chief Counsel for the Pennsylvania Human
Relations Commission, you are a public employee subject to the
provisions of the Ethics Law. Section 3(a) of the Ethics Law mould
not prohibit you from participating in political activities during
non - working hours subject to the qualifications set forth above,
Lastly, the propriety of the proposed conduct has only been
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 faith conduct in any other civil or criminal
proceeding, providing the requestor has disclosed truthfully all
the material facts and committed the acts co aplained 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 +phalle4ge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission wi11 be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing end must bp Actually
receivd at the oomrnission .within fift n (15) days of the date of this
Blancett- Maddock, Dane, 94 -S
March 17, X94
Page 6
Advice pursuant #e 1 p4,Ceti $1130), The appeal may be received
at the Cammisaign by hand d@l 4ipited States mail, delivery
service, er by PAC trenami ►siQf (r1 Y?7 Ys®$O ).
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