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Home My WebLink About15-527 Fisher ADVICE OF COUNSEL April 6, 2015 Dennis C. Fisher 625 First Street Donora, PA 15033 15-527 Dear Mr. Fisher: This responds to your letter dated March 4, 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 borough administrator, secretary, and treasurer with regard to seeking election or simultaneously serving as a school director. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You currently serve as the appointed Administrator, Secretary, and Treasurer for the Borough of Donora (“Borough”). You do not have an employment contract with the Borough, and you serve at the pleasure of Borough Council. You are considering seeking election as a School Director for the Ringgold School District (“School District”) in 2015. You ask whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to seeking election as a School Director for the School District while simultaneously serving as the Borough Administrator, Secretary, and Treasurer. 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 the Borough Administrator, Secretary, and Treasurer, you are a public official/public employee subject to the provisions of the Ethics Act. If you would be elected as a School Director for the School District, upon assuming said position, you would in that capacity be a public official subject to the Ethics Act. Fisher, 15-527 April 6, 2015 Page 2 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. 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. In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the following provision of the Public School Code must be reviewed. § 3-322. Eligibility; incompatible offices Fisher, 15-527 April 6, 2015 Page 3 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. On its face, Section 3-322 of the Public School Code prohibits simultaneous service in the positions of borough treasurer and school director. You are advised that the Ethics Act would not prohibit you from seeking election as a School Director for the School District while simultaneously serving as the Borough Administrator, Secretary, and Treasurer. However, because the above provision of the Public School Code expressly prohibits simultaneous service as a borough treasurer and a school director, you may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the Borough’s Treasurer and as a School Director for the School District to the extent that you would receive any compensation or other financial gain or pecuniary benefit in either position. 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 currently serve as the appointed Administrator, Secretary, and Treasurer for the Borough of Donora (“Borough”); (2) you do not have an employment contract with the Borough, and you serve at the pleasure of Borough Council; and (3) you are considering seeking election as a School Director for the Ringgold School District (“School District”) in 2015, you are advised as follows. As the Borough Administrator, Secretary, and Treasurer, you are a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. If you would be elected as a School Director for the School District, upon assuming said position, you would in that capacity be a public official subject to the Ethics Act. The Ethics Act would not prohibit you from seeking election as a School Director for the School District while simultaneously serving as the Borough Administrator, Secretary, and Treasurer. However, you may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the Borough’s Treasurer and as a School Director for the School District to the extent that you would receive any compensation or other financial gain or pecuniary benefit in either position. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Fisher, 15-527 April 6, 2015 Page 4 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