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Home My WebLink About92-641STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783.1610 ADVICE OF COUNSEL November 6, 1992 92 - 641 Re: Conflict, Public Official /Employee, Private Activities, Member of Council A. This responds to your letter of September 29, 1992, in which you requested confidential advice from the State Ethics Commission. Issue: Whether a Commonwealth employee serving as a B in Office C's Section D is prohibited or restricted by the Public Official and Employee Ethics Law from serving as an F representative on Council A in addition to public service. a.. . Facts: As a B in Office C's Section D you state that your responsibilities include investigating and litigating.E violations affecting the Commonwealth or its citizens and supe staff attorneys and other support staff. In bringing E actions, your office either represents the Commonwealth or individual state agencies, local governmental entities or consumers. You are also Treasurer and one of two, representatives on Council A representating G. You state that Counoi,1-Ac is a state- wide organization with a membership consisting of_representatives from the H making up I. You state that t;ie general purpose of Council A is to present to the executive and legislative branches of government and to others the accomplishments, needs, capabilities and interests of I. You have submitted the Mission Statement of the Council which more fully describes its objectives and strategies, which document is incorporated hergin reference. You specifically .inquire as. tQ ,. :ether 1 tbere are any prohibitions under the ,Ethics Law .relating 4 to . •your oinvolvement in Council A given your position in Office C's Section D. 3iscussion: As a .; B in. Office C's Section :D, 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. Confidential Advice No. 92 -641 November 6, 1992 Page 2 Section 3(a) of the Ethics Law provides: Se 4541 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: g,ection 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 pravided.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." Any corporation:,, partner- ship, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding c:umpany, joint stock company, receivership, trust or any 1.egaz entity organized for profit. "Business with. which he is associated." Any business irn which. the ,person or a member of the person iiiuntciT to , family is a director, office, owner, employee or has a financial interest Confidential Advice No. 92 -641 November 6, 1g92 Page 3 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 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 have 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. Council A would be a business with which you are associated. 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 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. .Crisci, Opinion 89-013. Thus, a public official /employee could not perform private activities or business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research „anaterials, personnel or any other property could not be used as a means in whole or part, to carry out private activities or business.—See, Dorrance, Order No. 456. In addition, the public official /employee could not during government working hours, solicit or promote a business with which he is associated. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment`. €or such a prohibited private pecuniary benefit. In the'event that Council A has a matter pending before your governmental body or if 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 such cases as noted above, Section 3(j) of the Ethics Law would require not only that you.abstaiYr from participation but also file a written memorandum to that effect with the person recording the minutes or your supervisor. Confidential Advice No. 92 -641 November 6, 1992 Page 4 In summary, the Ethics Law would restrict the following: 1. ; The use of authority of office for the private pecuniary benefit of a business with which you are associated; 2, utilization of confidential information gained through public - position ; 3. participating in discussions, reviews, or recommendations on matters which relate to the business with which you are associated 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 Rules of Professional . Conduct or the J. Conclusion: As a B in Office C's Section D, you are a public - employee subject to the provisions of the Ethics Law. Section 3(a) . ,o€ the Ethics Law would not .. preclude you from outside activities or .;business subject to the restrictions and qualifications as noted above. In the event that Council A has matters pending before your governmental body, then you could not participate in that matter 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. 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 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 tasued Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant Confidential Advice No. 92641 November 6, 1992 Page 5 to 51 Pa. Code 52.12. Sincerely, Vincent . Dopko Chief Counsel