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HomeMy WebLinkAbout08-597 YoshJoseph Yosh 335 East State Street Larksville, PA 18704 -1015 Dear Mr. Yosh: ADVICE OF COUNSEL November 26, 2008 08 -597 This responds to your letter of October 14, 2008, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a Pennsylvania State Constable with regard to simultaneously serving in an unpaid volunteer status as an assistant to a borough code enforcement officer. Facts: You currently serve as a Pennsylvania State Constable and a Borough Council Member for Larksville Borough ("Borough "). You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are interested in serving as the assistant to the Borough Code Enforcement Officer. You state that if you would be appointed to the position, you would enforce Borough ordinances and nuisance codes, issue citations, and appear for hearings on appeals. You state that you would serve in the position in an unpaid volunteer status, and that you would not accept any fees or paid expenses for such service. You reference Yosh, Advice 06 -592, issued October 18, 2006, which concluded that subject to certain restrictions, conditions and qualifications, you would be permitted to simultaneously serve as a Borough Council Member and unpaid assistant to the Borough Code Enforcement Officer. You now ask whether you would be permitted under the Ethics Act to simultaneously serve as a Constable and as an unpaid assistant to the Borough Code Enforcement Officer. 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, the Commission does not engage in an Yosh, 08 -597 November 26, 2008 Page 2 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, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the 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. As a Constable, you are a public official subject to the Ethics Act. Based upon the limited submitted facts and the narrow question posed, this Advice does not determine whether, as the assistant to the Borough Code Enforcement Officer, you would be considered a public official subject to the Ethics Act. 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 are defined in the Ethics Act as follows: Yosh, 08 -597 November 26, 2008 Page 3 § 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 the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa. C. S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, 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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In the event that the required abstention 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 Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily- declared incompatibility precluding simultaneous service as a Constable and as the unpaid assistant to the Borough Code Enforcement Officer. Turning to the question of conflict of interest, pursuant to Section 1103(a) of the Ethics Act, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to Yosh, 08 -597 November 26, 2008 Page 4 himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain, and in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as a Constable and as the unpaid assistant to the Borough Code Enforcement Officer. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). As for Section 1103(a) of the Ethics Act, the submitted facts do not indicate whether, in serving as the assistant to the Borough Code Enforcement Officer, you would have a financial advantage over other Constables in securing related work from the Borough as a Constable. See, Riley, Opinion 00 -008. Therefore, if you intend to provide Constable services to the Borough for compensation while serving as the assistant to the Borough Code Enforcement Officer, it is recommended that you seek further advice from the Pennsylvania State Ethics Commission as to a possible conflict of interest. You are advised that you would not have a conflict of interest as to providing Constable services to the Borough without compensation. Act. The propriety of the proposed conduct has only been addressed under the Ethics Conclusion: As a Pennsylvania State Constable, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Constable and as the unpaid assistant to the Larksville Borough Code Enforcement Officer. The submitted facts do not indicate whether, in serving as the assistant to the Borough Code Enforcement Officer, you would have a financial advantage over other Constables in securing related work from the Borough as a Constable. If you intend to provide Constable services to the Borough for compensation while serving as the assistant to the Borough Code Enforcement Officer, it is recommended that you seek further advice from the Pennsylvania State Ethics Commission as to a possible conflict of interest. You would not have a conflict of interest as to providing Constable services to the Borough without compensation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Yosh, 08 -597 November 26, 2008 Page 5 Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel