HomeMy WebLinkAbout85-591 BoydNathaniel W. Boyd, IV, Esquire
11 East Market Street
York, PA 17401
Dear Mr. Boyd:
Mailing Address.
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
October 22, 1985
ADVICE OF COUNSEL
85 -591
Re: Simultaneous Service, Municipal Authority, Employee Department of
Environmental Resources
This responds to your letter of September 17, 1985, wherein you requested
the Advice of the State Ethics Commission.
Issue: Whether an employee wit hi the Department of Environmental Resources may
simultaneously serve as a member of a municipal water authority.
Facts: You represent Thomas Miller who is employed as a hydrogeologist with
the Pennsylvania Department of Environmental Resources, (D.E.R.). Mr. Miller
seeks the advice of the. Ethics Commission regarding whether there is any
conflict of interest if he also serves as a member of a municipal water
authority in Dover Township. Generally, in his position with D.E.R., Mr.
Miller performs duties relating to the study, charting, preservation,
utilization, development and protection of ground water. This work, in part,
requires him to meet and assist government officials, private land owners and
industry representatives.
Discussion: As a hydrogeologist for D.E.R., Mr. Miller is to be considered a
public employee as that term is defined in the State Ethics Act. 65 P.S.
§402. As such, his conduct must conform to the requirements thereof.
Manduke, 85 -588.
Also, as a municipal authority member, he could be considered a public
official within the purview of the Act. Forney v. State Ethics Commission, 56
Pa. Commw. 539; 425 A.2d 66, (1981).
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Nathaniel W. Boyd, IV, Esquire
October 22, 1985
Page 2
Generally, the Ethics Act places no per se restriction upon a public
official serving in more than one public position. The Act regulates
conflicts of interest and the intent of the law is to insure that public
officials and employees avoid such conflicts as well as the appearance of such
conflicts. 65 P.S. §401. Thus, certain restrictions may be placed upon
public officials who serve in one or more positions that are adverse or
inherently incompatible. See Alfano, 80 -007; Nelson, 85 -009.
Here, it does not appear as though the positions involved are inherently
incompatible.
As a public employee, Mr. Miller may not use the facilities, personnel,
or equipment of D.E.R. for the benefit of the authority. Additionally, Mr.
Miller is prohibited from using any confidential information secured through
D.E.R. for the benefit of the authority. See, 65 P.S. §403(a). Additionally,
he may not use any such facilities, etc., or information obtained as an
authority member for similar purposes.
Additionally, in order to avoid even the appearance of a conflict, Mr.
Miller must abstain as an employee of D.E.R. in any action or activity that
involves the authority. Similarly, he should abstain as an authority member
in the authority's dealings with D.E.R.
Additionally, while the State Ethics Commission may only address your
question under the State Ethics Act, your attention is directed to the State
Adverse Interest Act, which may be applicable. 71 P.S. §776.(a).
Conclusion: There is no per se prohibition upon the simultaneous service by
an employee of the Department of Environmental Resources as a municipal water
authority member. As a public employee /official, this person must insure that
his conduct conforms to the requirements of the State Ethics Act as outlined
above.
Pursuant to Section 7(9)(ii), 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, providing the requestor 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.
Nathaniel W. Boyd, IV, Esquire
October 22, 1985
Page 3
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfb
Si nc
ohn J. Co
General •unsel