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HomeMy WebLinkAbout08-003 CORCORANJohn P. Corcoran 20 South Main Street Plains, PA 18705 Dear Mr. Corcoran: I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella DATE DECIDED: 1/29/08 DATE MAILED: 2/5/08 08 -003 This Opinion is issued in response to the appeal of Advice of Counsel, 07 -604, which was issued on December 27, 2007. Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any prohibitions or restrictions upon a county coroner with regard to simultaneously serving as a school director. II. FACTUAL BASIS FOR DETERMINATION: By letter dated January 2, 2008, you appealed Advice of Counsel, 07 -604. You are presently serving as an elected School Director for the Wilkes -Barre Area School District. On November 6, 2007, you were elected to the office of Coroner of Luzerne County ( "County "). You sought an advisory as to whether simultaneous service as a School Director with the Wilkes -Barre Area School District and as County Coroner would be prohibited under the Ethics Act. In your initial advisory request, you stated your view that Section 3 -322 of the Pennsylvania Public School Code, 24 P.S. § 3 -322, would not disqualify you from serving as a School Board member while serving as County Coroner. Advice of Counsel, 07 -604, issued December 27, 2007, determined that in both capacities as a School Director and as County Coroner, you would be considered a public official subject to the provisions of the Ethics Act. The Advice noted that pursuant to Corcoran, 08 -003 February 5, 2008 Page 2 Section 401(a)(4) of the County Code, 16 P.S. § 401(a)(4), the position of county coroner is a county office, and that Section 402(a) of the County Code, 16 P.S. § 402(a), forbids an elected county officer to simultaneously serve as a school director of any school district. The Advice further noted that a conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain is derived as a result of holding incompatible positions simultaneously. The Advice concluded that pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from simultaneously serving in the positions of School Director (an uncompensated position) and County Coroner to the extent you would receive compensation for serving as County Coroner. By letter dated January 2, 2008, you appealed Advice of Counsel, 07 -604. Your appeal letter did not state any particular basis for the appeal, but merely exercised the right to appeal the Advice of Counsel. By letter dated January 3, 2008, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on January 29, 2008, you appeared telephonically and offered commentary, which may be fairly summarized as follows. You have served as a School Director for eleven years. You are presently completing your third term as a School Director, and you do not intend to run for an additional term. You have been a licensed funeral director for thirty -three years, and you state that you are familiar with the County Coroner's office. You are not paid for serving as a School Director. The office of County Coroner is a compensated position. You contend that the positions of County Coroner and School Director do not overlap in any way. You would like to remain in office as a School Director until the end of your term. You ask whether you would be permitted to simultaneously serve as County Coroner and School Director. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, this Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by this Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. It is clear that, as a School Director for the Wilkes -Barre Area School District, you are a public official subject to the provisions of the Ethics Act. Cf., Quinn, Opinion 07 -014; Confidential Opinion, 05 -004; Means, Opinion 04 -007. It is also clear that, upon taking office as Coroner for Luzerne County, you would, in that capacity, also be considered a public official subject to the provisions of the Ethics Act. Cf., Yatron, Opinion 02 -008; Corcoran, 08 -003 February 5, 2008 Page 3 Rohanna, Opinion 01 -003. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted Activities (a) Conflict of interest - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict - -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. 65 Pa. C. S. §§ 1103(a), (j). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: § 1102. 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. The term 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 Corcoran, 08 -003 February 5, 2008 Page 4 the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa. C. S. § 1102. The above statutory definition of "conflict" or "conflict of interest" includes two exclusions, often referred to in our rulings as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900. In applying the above provisions of the Ethics Act to your inquiry, Advice of Counsel, 07 -604 accurately noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. Although we are not expressly authorized by statute to interpret such other laws, we may review them in order to determine whether a conflict exists under the Ethics Act based upon a statutory incompatibility. We have previously held that a conflict of interest exists under the Ethics Act when a public official or public employee receives a pecuniary benefit or financial gain (such as salary, benefits, and the like) as a result of simultaneously holding incompatible positions. Confidential Opinion, 03 -003. In your initial advisory request, you referenced Section 3 -322 of the Pennsylvania Public School Code, 24 P.S. § 3 -322, which sets forth incompatible offices for school directors and provides, in pertinent part, as follows: § 3 -322. Eligibility; incompatible offices Any citizen of this Commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of mayor, chief burgess, county commissioner, district attorney, city, borough, or township treasurer, member of council in any municipality, township commissioner, township supervisor, tax collector, assessor, assistant assessor, any comptroller, auditor, constable, executive director or assistant executive director of an intermediate unit, supervisor, principal, teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth.... A school director shall not be eligible to the office of member of council in any municipality. 24 P.S. § 3 -322. We agree that the above provision, on its face, would not prohibit simultaneous service as School Director and County Coroner. However, the County Code must also be consulted, and, as noted in the Advice of Counsel, it clearly prohibits an elected county officer such as a Coroner from simultaneously serving as a School Director: § 401. Enumeration of elected officers Corcoran, 08 -003 February 5, 2008 Page 5 (a) In each county, there shall be the following officers elected by the qualified electors of the county: (4) One coroner. 16 P.S. § 401(a)(4). § 402. Incompatible offices (a) No elected county officer or county solicitor shall, at the same time, serve as a member of the legislative body of any city, borough, town or township of any class, nor as treasurer or tax collector of any city, borough, incorporated town or township, nor as school director of any school district, nor as a member of any board of health. 16 P.S. § 402(a) (Emphasis added). On its face, Section 402(a) of the County Code prohibits simultaneous service in the positions of County Coroner and School Director. Where incompatible positions would be held simultaneously, any compensation or other financial gain or pecuniary benefit received from holding either position would constitute a private pecuniary benefit. Subject to the "de minimis" exclusion to the definition of "conflict" or "conflict of interest" above, such a private pecuniary benefit would form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Although School Directors are not compensated, County Coroners do receive compensation. Based upon our above analysis, we modify Advice of Counsel, 07 -604. We hold that simultaneous service in the positions of County Coroner and School Director would be contrary to Section 1103(a) of the Ethics Act to the extent the public official serving in such positions would receive, in either position, any compensation or other financial gain or pecuniary benefit that would not fall within the "de minimis" exclusion to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act. The appeal is denied. Advice of Counsel, 07 -604 is affirmed as modified. Based upon the unique circumstances presented in this particular appeal, this Opinion shall be effective February 6, 2008, as to Appellant Corcoran. The prospective application of this Opinion as to Appellant Corcoran is for purposes of the Ethics Act only, and does not extend to matters under the County Code, which are beyond the jurisdiction of this Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. IV. CONCLUSION: A School Director is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. A County Coroner is also a public official subject to the provisions of the Ethics Act. Simultaneous service in the positions of County Coroner and School Director would be contrary to Section 1103(a) of the Ethics Act to the extent the public official serving in such positions would receive, in either position, any compensation or other financial gain or pecuniary benefit that would not fall within the "de minimis" exclusion to the definition of "conflict" or "conflict of interest" Corcoran, 08 -003 February 5, 2008 Page 6 as set forth in the Ethics Act. The appeal is denied. Advice of Counsel, 07 -604 is affirmed as modified. This Opinion shall be effective February 6, 2008, as to Appellant Corcoran. The propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, Louis W. Fryman Chair