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Home My WebLink About92-576Thomas Arthur James, Jr., Esquire 92 -5 James `& Mihalik 29 East Main Street Bloomsburg, PA 17815-1898 Re: Conflict,. Public Official /Employee, County Chief Assessor, Use of Authority of Office or Confidential Information, Private Employment or Business, Business with which Associated, Independent Contractor, Private Fee Appraisals. Dear Mr. James: STATE ETHICS, COMMISSION 309 FINANCE• BUILDING P.O. BOX 11470 HARRISBURG;: PA'1 71 08 -1 470 TELEPHONE 717) 783:1610 ADVICE OF ; C.OUNSEL May - 7., 1 This responds to your letter of. March 26, 1992, 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 county chief assessor with regard to doing private fee appraisals as an independent contractor. Facts: As the Solicitor for Columbia County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of Mr. David L. Good, Chief Assessor for Columbia County. Mr. Good has secured his license to do appraisals. You state that Mr. Good's education and training was undertaken at his own expense and volition and enhances his abilities as the Chief Assessor. Mr. Good's ability to do appraisals also allows him to be an independent contractor doing private fee appraisals. You state that the issue is whether, as Chief Assessor of Columbia County, Mr. Good may-perform "fee appraisals" within Columbia County. You note that it has been Mr. Good's understanding from speaking with representatives of this Commission that there would be no conflict as long as a limiting condition was placed on his appraisals that they could not be used for tax appeal purposes. Discussion: As the Chief Assessor for Columbia County, Pennsylvania, Mr. David L. Good is a public official /public employee as defined under the Ethics Law, and hence he is subject to the provisions of that law. Thomas Arthur James, Jr.., Esquire , May 7, 1992 :page 2 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." Uee by a public official or public employee of the authority of his office or employment 'or any confidential information received through hie 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 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 the public official /employee would be influenced thereby. Reference is Thomas Arthur James, Jr., Esquire May 7, 1992 Page 3 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. In applying the above provisions of the Ethics Law to the circumstances which you submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority_ of, public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. 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 --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 holding public office /employment for such a prohibited private pecuniary benefit. In the event that a public official /public employee, his private employer or business, or a private client has a matter pending before a public official's /public employee's governmental body or if the public official /public employee as of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion. 89 -024. In those instances, it will be necessary that the public official /public employee be removed from that process. .Should Mr. Good's private appraisals come before him as a public .official, he'would have a conflict and would be required to abstain from any participation of any nature whatsoever, and to comply with the disclosure requirements of Section 3(j) of the Ethics .,Law, set forth above. In summary, the Ethics Law would : restrict the following : 1. The use of authority of office to 'obtain any business in a pri' a to capacity; Thomas Arthur James, Jr., Esquire May 7, 1992 Page 4 2. utilization of confidential information gained through public position; 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 per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. 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 County Code. Conclusion: As the Chief Assessor for Columbia County, Pennsylvania, Mr. David L. Good is a public official /public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude Mr. Good from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that Mr. Good or a private client has matters pending before his governmental body, or if Mr. Good's private appraisals come before him in his capacity as a public official /public employee, then Mr. Good could not participate in such matters and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. 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 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 with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at Thomas Arthur James, Jr., Esquire May 7, 1992 Page 5 the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. S)ncerely, Vincent".2. Dopka Chief Counsel •■•