HomeMy WebLinkAbout15-557 Cabaday
ADVICE OF COUNSEL
August 20, 2015
Janet Cabaday
1017 Priestley Avenue
Erie, PA 16511
15-557
Dear Ms. Cabaday:
This responds to your letter dated July 30, 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
employed as a part-time secretary with the police department of a first class township with
regard to seeking election or simultaneously serving as a commissioner for the township.
Facts:
You request an advisory from the Commission based upon submitted facts
that may be fairly summarized as follows.
You are currently employed as a part-time secretary with the police department of a
first class township (the “Township”). As a part-time Township employee, you receive an
hourly wage and no benefits.
You are interested in seeking election as a Township Commissioner. You state that
if elected, you could abstain from any decisions about the Township police department,
which would remove you from having involvement in matters pertaining to your
employment position with the Township.
The question that is presented is whether the Ethics Act would impose any
prohibitions or restrictions upon you with regard to seeking election or serving as a
Township Commissioner while employed as a part-time secretary with the Township police
department.
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
Cabaday, 15-557
August 20, 2015
Page 2
to the extent the requester has truthfully disclosed all of the material facts.
If you would be elected as a Township Commissioner, upon assuming said
position, you would in that capacity be 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 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.
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August 20, 2015
Page 3
"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.
Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict”
or “conflict of interest,” 65 Pa.C.S. § 1102, 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
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that the Ethics Act would not prohibit you from seeking election as a Township
Commissioner.
With regard 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 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 First Class Township
Code, 53 P.S. § 55101 et seq., that expressly authorize a township commissioner to serve
as a township employee, and there are legal issues as to whether the First Class Township
Code would permit such simultaneous service. See, McCutcheon v. State Ethics
Commission, 466 A.2d 283 (Pa. Cmwlth 1983) (Note 9); Marshall, Order 1508. Therefore,
if the First Class Township Code would permit you as a part-time secretary for the
Township police department to simultaneously serve as a Township Commissioner, 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
First Class Township 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:
Based upon the submitted facts that: (1) you are currently employed
as a part-time secretary with the police department of a first class township (the
“Township”); (2) as a part-time Township employee, you receive an hourly wage and no
benefits; (3) you are interested in seeking election as a Township Commissioner; and (4)
you state that if elected, you could abstain from any decisions about the Township police
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August 20, 2015
Page 4
department, which would remove you from having involvement in matters pertaining to your
employment position with the Township, you are advised as follows.
If you would be elected as a Township Commissioner, upon assuming said position,
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. The Ethics Act would
not prohibit you from seeking election as a Township Commissioner. There do not appear
to be any statutory provisions in the First Class Township Code, 53 P.S. § 55101 et seq.,
that expressly authorize a township commissioner to serve as a township employee, and
there are legal issues as to whether the First Class Township Code would permit such
simultaneous service. Therefore, if the First Class Township Code would permit you as a
part-time secretary for the Township police department to simultaneously serve as a
Township Commissioner, 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 First Class Township 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