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Home My WebLink About12-550 Touchinsky ADVICE OF COUNSEL July 2, 2012 Buddy Touchinsky, D.C. 225 Clark Drive Orwigsburg, PA 17961 12-550 Dear Dr. Touchinsky: This responds to your undated letter received June 1, 2012, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a borough council member with regard to simultaneously serving as a member of the board of trustees of a charter school. Facts: You are a Member of Council for Orwigsburg Borough (“Borough”). You seek guidance as to whether you may simultaneously serve as a Borough Council Member and a Member of the Board of Trustees of the Gillingham Charter School (“Charter School”). 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 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. As a Member of Borough Council, you are a public official subject to the provisions of 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 Touchinsky, 12-550 July 2, 2012 Page 2 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 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. Touchinsky, 12-550 July 2, 2012 Page 3 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 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. Although the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Act to determine whether a conflict exists based upon statutory incompatibility. Corcoran, Opinion 08-003. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. See, Corcoran, supra; Confidential Opinion 03- 003. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. There do not appear to be any statutory provisions in the Borough Code, 53 P.S. § 45101 et seq., or the Charter School Law, 24 P.S. § 17-1701-A et seq., that expressly declare the position of borough council member to be incompatible with the position of member of the board of trustees of a charter school. Because the State Ethics Commission does not have the statutory jurisdiction to interpret the Borough Code, this advisory may not determine whether a member of the board of trustees of a charter school would be considered to be a “school director” for purposes of Section 45801(a) of the Borough Code, which provides, in part, as follows: “A school director shall not be eligible to an elective borough office….” 53 P.S. § 45801(a). You are generally advised that if the Borough Code would permit you as a Borough Council Member to simultaneously serve as a Member of the Board of Trustees of the Charter School, the Ethics Act would likewise permit such simultaneous service because there would be no receipt of a private pecuniary benefit that would be unauthorized in law. Conversely, if the Borough Code would prohibit the aforesaid simultaneous service, the simultaneous service would likewise be prohibited by Section 1103(a) of the Ethics Act to the extent you would receive compensation in either position. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member of Council for Orwigsburg Borough (“Borough”), 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 . There do not appear to be any statutory provisions in the Borough Code, 53 P.S. § 45101 et seq., or the Charter School Law, 24 P.S. § 17-1701-A et seq., that expressly declare the position of borough council member to be incompatible with the position of member of the board of trustees of a charter school. Because the State Ethics Commission does not have the statutory jurisdiction to interpret the Borough Code, this advisory may not determine whether a member of the board of trustees of a charter school would be considered to be a “school director” for purposes of Section 45801(a) of the Borough Code, which provides, in part, as follows: “A school director shall not be eligible to an elective borough office….” 53 P.S. § 45801(a). You are generally advised that if the Borough Code would permit you as a Borough Council Member to simultaneously serve as a Member of the Board of Trustees of the Gillingham Touchinsky, 12-550 July 2, 2012 Page 4 Charter School, the Ethics Act would likewise permit such simultaneous service because there would be no receipt of a private pecuniary benefit that would be unauthorized in law. Conversely, if the Borough Code would prohibit the aforesaid simultaneous service, the simultaneous service would likewise be prohibited by Section 1103(a) of the Ethics Act to the extent you would receive compensation in either position. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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, 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 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