HomeMy WebLinkAbout17-518 Stoucht
STATE ETHICS COMMISSION
309 FINANCE BUILDING
p0. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
March 21, 2017
To the Requester:
Mr. Joshua Z. Stouch
17518
Dear Mr. Stouch:
This responds to your letter dated January 20, 2017 (postmarked January 27, 2017,
and received January 30, 2017), 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
Fa.TS. § 1101 et seq., would impose prohibitions or restrictions upon an individual with
regard to simultaneously serving as either a constable or an appointed deputy constable in
a township and a supervisor for the township.
Facts: You request an advisory from the Commission based upon submitted facts,
t e material portion of which may be fairly summarized as follows.
You are a Constable elected in Douglass Township ( "Township "), Montgomery
County, Pennsylvania. Your term of office as a Constable ends on January 3, 2022. One
appointed Deputy Constable reports to you.
You are seeking election as a Township Supervisor in 2017.
You ask whether the Ethics Act would impose any prohibitions or restrictions upon
you with regard to simultaneously serving as either a Constable or an appointed Deputy
Constable in the Township and a Township Supervisor.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics ct, 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 truthffully disclosed all of the material facts.
As either a Constable or an appointed Deputy Constable, you would be considered
a public official subject to the provisions of the Ethics Act. If you would be elected as a
Township Supervisor, upon assuming said position, you would in that capacity also be
considered a public official subject to the provisions of the Ethics Act.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.ga.us 0 e- mail.: ethics(@state.pa.us
Staoch, 17 -518
a-rcuA21, 2017
Page 2
Sections 1103(a) and 11030) 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.
0) 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 rovisions 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), 0).
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.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
he performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
v ch 17 -518
1, 2017
Page 3
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. 5 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.
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.
It is administratively noted that Title 44, Part IV, Chapter 71 of the Pennsylvania
Consolidated Statutes, pertaining to Constables, provides in pertinent part as follows:
§ 7131. Public office.
(a) General rule. --
Except as set forth in subsection (b), it shall be unlawful
for a constable to hold or exercise the office of
magisterial district judge or alderman.
(b) Exceptions. --
Nothing in this section or in any other law or court rule
shall be. construed to prohibit a constable from:
(3) running for and holding an elective office....
44 Pa.C.S. § 7131.
Additionally, although a township supervisor is prohibited from simultaneously
holding other elective or appointive township offices or ositions, 53 P.S. § 65403(b), the
office of constable is not a township o ice or position even though a constable may be
elected within a township). See, Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983),
U.S. cert. den. in 465 U.S. 1024, 104 S. Ct. 1279 984); cf., Confidential Opinion, 92 -008.
You are advised that there does not appear to be any statutorily - declared
incompatibility that would preclude you from simultaneously servin' as either a Constable
or an appointed Deputy Constable in the Township and a Township Supervisor.
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 ublic
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 in
from simultaneously serving in
more than one position. However, in each instance of a conflict of interest, the individual
would be required to abstain, and in each instance of a voting conflict, to abstain and
satisfy the disclosure requirements of Section 11030) as set forth above.
Stough, 17 -518
arc 21, 2017
Page 4
In this case: there does not appear to be an inherent conflict that would preclude
simultaneous service as either a Constable or an appointed Deputy Constable in the
Township and a Township Supervisor. Consequently, such simultaneous service would be
permitted within the parameters of Sections 1103(a) and 11030) of the Ethics Act.
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 elected
in Douglass Township ( "Township "), Montgomery County, Pennsylvania; (2) your term of
office as a Constable ends on January 3, 2022; (3) one appointed Deputy Constable
reports to you; and (4) you are seeking election as a I ownship Supervisor in 2017, you are
advised as follows.
As either a Constable or an appointed Deputy Constable, you would be considered
a public official subject to the provisions of the Public Official and Employee Ethics Act
{ "Ethics Act "), 65 Pa.C.S. § 1101 et sue. If you would be elected as a Township
Supervisor, upon assuming said positjon, you would in that capacity also be considered a
public. official subject to the Ethics Act. Subject to the restrictions, conditions and
qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve as either a Constable or an appointed Deputy Constable in the
Township and a Township Supervisor. 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 orif you have anyreason 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 byhand delivery, United States mail, delivery service, orby
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
VSincerely, `y ^�
'inM. Hittie
Chief Counsel