The URL can be used to link to this page

Home My WebLink About15-522 Porter Krum ADVICE OF COUNSEL March 24, 2015 Melissa Porter Krum 433 South Pennsylvania Avenue Centre Hall, PA 16828 15-522 Dear Ms. Krum: This responds to your letter dated February 19, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“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 serving as a School Director with regard to simultaneously serving as a Magisterial District Judge. Facts: You request an advisory from the Commission based upon the following submitted facts. You are serving the final year of a four-year term as a School Director for the Penns Valley Area School District (“School District”). You are currently Vice President of the School District School Board (“School Board”). You intend to run for another four- year term as a School Director. You state that several current School Directors have asked you to take the role of President of the School Board if you would be elected to another four-year term as a School Director. You plan to run in 2015 for the office of Magisterial District Judge. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to simultaneously serve as a School Director for the School District and a Magisterial District Judge, and if so, whether you would be able to hold an executive position on the School Board. 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. Krum, 15-522 March 24, 2015 Page 2 As a School Director for the School District, you are a public official subject to the provisions of 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). 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 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. 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. The positions of School Director and Magisterial District Judge do not appear to have been declared incompatible by the General Assembly. However, the Pennsylvania Supreme Court has the constitutional power to prescribe rules or canons Krum, 15-522 March 24, 2015 Page 3 governing Magisterial District Judges. Pa. Const. Art. 5, § 17(b). On its face, Rule 3.9 B of the Pennsylvania Rules Governing Standards of Conduct of Magisterial District Judges appears to prohibit simultaneous service in the positions in question: Rule 3.9. Incompatible Practices. … B. Magisterial district judges shall not hold another office or position of profit in the government of the United States, the Commonwealth or any political subdivision thereof, except in the armed services of the United States or the Commonwealth. 207 Pa. Code, Chapter 51, Rule 3.9 B (Emphasis added). Because the Commission lacks jurisdiction to enforce the Ethics Act as to judicial officers and judicial employees (see, L.J.S. v. State Ethics Commission, 744 A.2d 798 (Pa. Cmwlth. 2000); Billotte, Opinion 00-005), and because the apparent prohibition against simultaneous service in the positions in question is contained within the Pennsylvania Rules Governing Standards of Conduct of Magisterial District Judges, any transgression of such a prohibition would fall within the jurisdiction of the Judicial Branch and not the jurisdiction of the Commission. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) you are serving the final year of a four-year term as a School Director for the Penns Valley Area School District (“School District”); (2) you are currently Vice President of the School District School Board (“School Board”); (3) you intend to run for another four-year term as a School Director; (4) several current School Directors have asked you to take the role of President of the School Board if you would be elected to another four-year term as a School Director; and (5) you plan to run in 2015 for the office of Magisterial District Judge, you are advised as follows. As a School Director for the School District, 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. On its face, Rule 3.9 B of the Pennsylvania Rules Governing Standards of Conduct of Magisterial District Judges appears to prohibit simultaneous service in the positions of School Director and Magisterial District Judge. However, because the State Ethics Commission lacks jurisdiction to enforce the Ethics Act as to judicial officers and judicial employees, and because the apparent prohibition against simultaneous service in the positions in question is contained within the Pennsylvania Rules Governing Standards of Conduct of Magisterial District Judges, any transgression of such a prohibition would fall within the jurisdiction of the Judicial Branch and not the jurisdiction of the State Ethics Commission. 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. Krum, 15-522 March 24, 2015 Page 4 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