Loading...
HomeMy WebLinkAbout16-532 Swartz ADVICE OF COUNSEL May 9, 2016 Tim Swartz P.O. Box 125 Temple, PA 19560 16-532 Dear Mr. Swartz: This responds to your letter dated March 28, 2016 (postmarked April 4, 2016, and received April 6, 2016), 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 a constable who receives payment from a county for constable work performed as an independent contractor with regard to simultaneously serving as a full-time employee of the county. Facts: You request an advisory from the Commission based upon the following submitted facts. You are a Constable, and you receive payment from a county (the “County”) for Constable work that you perform as an independent contractor. You are considering seeking full-time employment with the County. If you would be hired as a full-time County employee, you would like to continue to receive payment from the County for performing work as a Constable on a part-time basis. Based upon the above submitted facts, the question that is presented is whether the Ethics Act would permit you to simultaneously serve as a full-time County employee and a Constable performing Constable work for the County as an independent contractor. 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. Swartz, 16-532 May 9, 2016 Page 2 In this regard, it is noted that the submitted facts do not indicate what office(s) of the County you contract with in your capacity as a Constable or the value of such contract(s). Additionally, the advisory request does not indicate what employment position you would hold with the County. As a Constable, 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. 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. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities Swartz, 16-532 May 9, 2016 Page 3 (f)Contract.-- No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official/public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an “open and public process” be observed as to the contract with the governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. 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. There does not appear to be any statutorily-declared incompatibility precluding simultaneous service as a Constable and a full-time County employee. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain from participation. In this case, based upon the limited facts that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as a Constable and a full-time County employee. Cf., Kerstetter, Advice 05-522. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) of the Ethics Act. Cf., Riley, Opinion 00-008 (holding that a county warrant enforcement bureau administrator who, by virtue of his public employment with Swartz, 16-532 May 9, 2016 Page 4 that county, had direct and immediate access to information pertaining to all outstanding warrants in such county, would have a conflict of interest in serving that county’s warrants as a deputy constable for compensation). The restrictions of Section 1103(f) of the Ethics Act would have to be observed whenever applicable. Based upon the limited submitted facts, it cannot be determined whether the restrictions of Section 1103(f) would be applicable as to your contract(s) to perform Constable work for the County. 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 a Constable, and you receive payment from a county (the “County”) for Constable work that you perform as an independent contractor; (2) you are considering seeking full-time employment with the County; and (3) if you would be hired as a full-time County employee, you would like to continue to receive payment from the County for performing work as a Constable on a part-time basis, you are advised as follows. As a Constable, 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. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Constable and a full-time County employee. The restrictions of Section 1103(f) would have to be observed whenever applicable. 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