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HomeMy WebLinkAbout13-589 Largey ADVICE OF COUNSEL December 23, 2013 Joseph C. Largey 257 Coal Hollow Road Kersey, PA 15846 13-589 Dear Mr. Largey: This responds to your undated letter postmarked November 20, 2013, received November 26, 2013, 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 prohibitions or restrictions upon an individual employed as a water operator with a township with regard to simultaneously serving as a township auditor. Facts: You are currently employed as a water operator with Fox Township (“Township”). You have been elected as a Township Auditor. You ask whether the Ethics Act would permit you to simultaneously serve as a water operator employed by the Township and a Township Auditor. 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. If you would take office as a Township Auditor, you would in that capacity be a public official subject to the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). Largey, 13-589 December 23, 2013 Page 2 The following terms related to Section 1103(a) are defined in the Ethics Act 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. 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 them to determine whether a conflict of interest exists under the Ethics Act based upon a 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. The State Ethics 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. In this case, the Second Class Township Code, on its face, expressly prohibits a township auditor from being an employee of the township to which he has been elected/appointed: § 65404. Auditors … (b) No auditor shall at the same time hold any other elective or appointive township office or position or be an employe of the township for which he has been elected or appointed. … 53 P.S. § 65404(b). Largey, 13-589 December 23, 2013 Page 3 Because the above provision of the Second Class Township Code expressly prohibits simultaneous service as a Township Auditor and Township employee, the compensation or other financial gain or pecuniary benefit that you would receive as a result of simultaneously holding the aforesaid positions would be a gain other than compensation provided for by law. Therefore, you are advised that pursuant to Section 1103(a) of the Ethics Act, you may not simultaneously serve as a Township Auditor and Township employee (water operator). Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: If you would take office as an Auditor for Fox Township (“Township”), you would in that capacity be a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts, you are advised that pursuant to Section 1103(a) of the Ethics Act, you may not simultaneously serve as a Township Auditor and Township employee (water operator). 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, 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 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