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Home My WebLink About92-631Frank H. Bole, Esquire 10531 Center Highway North Huntingdon, PA 15642 Dear Mr. Bole: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 25, 1992 92 -631 Re: Conflict, Public Official /Employee, Liquor Enforcement Officer, Pennsylvania State Police, Bureau of Liquor Control Enforcement, Attorney, Practice of Law. This responds to your letter of August 24, 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 Liquor Enforcement Officer employed by the Pennsylvania State Police, Bureau of Liquor Control Enforcement, who is also an attorney, with regard to the practice of law. Factsz As a civilian employee of the Pennsylvania State Police, Bureau of Liquor Control Enforcement with the title of Liquor Enforcement Officer, you request an advisory from the State Ethics Commission. You state that as a Liquor Enforcement Officer, you are responsible for conducting investigations of Liquor Code violations in the Commonwealth. You are currently not empowered to enforce the Crimes Code other than the " "underage drinking provisions. If your investigations uncover Liquor Code violations, you may initiate criminal prosecution and/or administrative violation proceedings against establishments licensed by the Liquor Control Board. You are also currently an attorney with an office located in North Huntingdon, Pennsylvania. On December 17, 1991, you received permission from the Pennsylvania State Police-to have supplementary employment as an attorney.. You have submitted -a copy of a document entitled "Supplementa Employment Request Agency Notification" by which such permission was granted to you subject to three specific stipulations. The first stipulation provides: You are NOT permitted to accept any cases Frank H. Bole, Esquire September 25, 1992 Page 2 involving the following: 1) Criminal 'Defense canes and any actions against the Commonwealth, its agencies, agents and employes. You seek an advisory from the Stag Ethics Commission as to whether you would in any way be violating the Ethics Law by accepting the above types of cases while employed by the Commonwealth. You ask that it be noted that you would refrain from accepting any cases that would violate the . other stipulations set forth in the incorporated document. You have also submitted a letter which you received from the Ethics Committee of the Allegheny County Bar Association. You note that this letter was in response to your request to that Committee fox an opinion as to whether accepting the types of cases described in the first stipulation above would violate the Rules of Professional Conduct governing the practice of law in Pennsylvania. The documents which you have submitted, consisting of a "Duty officer's Report" and a letter from S. David Litman to Frank H. Bole, Esquire, dated June 18, 1992, are incorporated herein by reference, Based upon the above, you "seek an advisory from the State Ethics Commission. Discussion: As a Liquor Enforcement Officer for the Pennsylvania State Police, Bureau of Liquor Control Enforcement, you are a - public employee as that term is definedundet the Ethics Law, - and hence you are subject to the.prcavisions of that law. Section 3(a) of the Ethics Law provides Section_ 3. Restricted Actjvitz.e . (a) No public official or public employee shall engage ih :conduct ' that constitutes a conflict of interest. The following terms are defined in the Ethics Law' as follows: Secti24 2. ni tion.s "Conflict or conflict of interest . "' L#se r'' by a public official or public employee of the authority of his office or employment oar any confidential information received through his holding public office or employment for the private pecuniary pecuniary of himself, a member Frank H. Bole, Esquire September 25, 1992 Page 3 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 hot 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. "Financial interest. Any financial interest .. in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness In addition, Sections 3(b) and 3(c) of the Ethics 14w prgv4 e in part that no person shall offer a public offidiah /employee anything of monetary value and no public official /employees shall solicit or . accept anything of monetary .value based. uijonr understanding that the vote, official,aqtign or jndgezaent fir' public official /employee would .be influence thareby. ; Rel=etC made to these provisions of ,the law not, to imply that he ;; s been or will be any transgression thereof but merly _,X e fro complete response to the q bn 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, rank B. Bole, Esquire "September 25, 1992 Page 4 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 molter that would I 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 4 a -yrri-tton memorandum filed frith the person reasponsible for recording the minUtes of the meeting at wh.ich. , the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it p.!..4..tx.s.,e the number of _members of the body required to abstain from -voting under the provsions of this section makes the g4 or Other legally required vbte of approval linattain.able, then such members Wall be permitted to vote if disclosures are Made as - otherwise provided herein. In the case of a ee gOyerning body of a political where one merrier has Ostained from voting as a resilit of a confitct of interest, and Vie remaining two metes of-the goVern.ing body have cast opposing votes, the ft1P,mbei who has abstained shall )3e perm_itted to vote to break the tie vote if disclosure is 414 as Otherwise provided herein.. If a conflict exists, Section 3(1) require f the public official/employee to abstain and to publicly disclose the abstention and reasons for same, both Orally and by filing a written MmOrandum that effect with tne person recording the minutes or supOrvisor. In applying the above provisions of the Ethics Law to the specific cple,SiOn which you have, submitted, Section 3(a) of the Ethics Law doe 4' not apply to restr,igt the eenduct of an attorney insofar as it constitutes the private pra_ot/ge 9f law. Such is, of course, exclusively within the regulatory tkOhority.of the Supreme Court of Pennsylvania. §ee, Pennsvlvania kallku Lttv Bar Astiociation v. Thor,4iirg1a, G2 Pa. Clic 414 A. 1 7 (1981), :thiriAm ?:%. 4,2d 0.3 ( 194: Thus in resPan.„ Ag spe„cific, inguify as to whotikez. the Ethic* - Law would' eii).oniapass, yoUr 8.V4141.4.ti.Ou ate to your private practice of law, you are adrvised that the Ethlcs-Law itself would nOt restrict yonr,,selection of clients aka k_private attorney. 31(4.) rq#3.1154 iip koi) certain restrictions upon you i n your 1 catlita. alk 49 employee. Frank H. Bole, Esquire September 25, 1992 Page 5 Generally, the Ethics Law places no. per se prohibition upon a public employee or public official engaging in private employment enterprises simultaneously with their public employment. However, you may not _use the authority of your public position or confidential information received by holding that position for the private pecuniary 'benefit . of yourself, any member of your immediate family, or A business with which you or a member of your immediate family is associated: Such a business would include a private law practice. - Pursuant to the Commission's decision in Miller, Opinion 89 -024, the restrictions of Section 3(a) similarly apply to preclude any use of the authority of your public position or confidential information received by holding that position for the private pecuniary benefit of clients of a business with which you are associated. Thus, you could not use the authority of your public position or confidential information received by holding your public position to :. obtain- clients. You could not use, to benefit you private practioe or its clients, any confidential information that you might obtain by virtue of your position as a public employee. Such information would include, but would not be limited to, confidential investigative files. Similarly, you could not use the authority of your position as a Liquor Enforcement Officer, whereby you are empowered to conduct investigations of Liquor Code violations , in •order to obtain any private pecuniary benefit for yourself, your law firm, or its clients. The use of such investigative/law-enforcement authority, which is vested in you by virtue of your public employment, for such a prohibited private pecuniary benefit would be a violation of Section 3(a) of the Ethics Law. A public official /employee must exercise caution so that his private business activities do not conflict with his publicuduties . Crisci, Opinion 89- 0 Thus, a public official %employee : :cond not perform private business using governmental facilities: 'oar 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, In event that your private firm or a client would have .a matter ,pending' before your governmental body or . f you as part 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 you be removed from that process.. In each instance of a conflict of .interest,, -you would be required to abstain; from any participation : of any nature-whatsoever and to fully •satisfy -the disclosure requirements of ; Section 3 0) (as Frank H. Bole, Esquire September 25, 1992 Page 6 set forth above. In 44dit.}.on to the foregoing, you are reminded that as a pu1119 employee, you are required to file a Statement of Financial Interests on an annual basis. Included in your financial dseiesure should be all sources of income totalling in the aggregate 41000 or more and the identity of all business enterprises in which you have a financial interest or in which you serve as an officer or director. the propriety of the proposed conduct has only been addressed under. the Ethics Law; the applicability of any other statute, code, ordinance, regglation 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 Rules of Professional Conduct; the Governor's code of Conduct; or the Liquor Code. Congiusion: As a Liquor Enforcement _ Officer for the Pennsylvania State P.glioe, Bureau of Liquor Control • Enforcement, you are a pudic employee subject to the provisions - of tie Ethics Law. Seotion 3 (a) of the Ethics Law would not rest 4ct your selection of clients in your capacity as a private attorney practicing law. In your capacity as a public employee, the restrictions of Sections 3(a), (b) , ( ), , and (j) set forth above must be observed. In each instance of a conflict of interest, you; would be required to abstain from any participation of any nature whatsoever and to fully satisfy the d scclosure requirements of Section 3( j) . You must also observe the financial interests ,disclosure requirements of the Ethics Laws, Lastly, the propriety of the proposed . conduct has only been addressed under the Ethics Laos. Pursuant to Section 7(11), this Advice: is a. complete defense in any enforcement proceeding, initiated by the Commission, and evidenpe of good faith conduct in any otbar civil or criminal proceeding,, providing the requestor has disclosed : truthfully all the rateeial facts and committed the acts complained of in reliance on. 4he Advice given. sug1. Ti;s its tier is a public record and will be made available as Flnabl yr,. if xou chi. sagree with this Advice or if: you have any rea of , tto o3 1l e_nge same, you, may request thatr the f i I.. Commission review- t- 41;tvi3.c,.. A. personal appearance before titbm Commission will be scheduled anc a formal.. Opinion from the Comma on :. will be issued. Any such appeal:; must be in writing and must: be received at Frank H. Hole, Esquire September 25, 1992 Page 7 the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. ely., incent J Dop o Chief Co sel t