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HomeMy WebLinkAbout88-535 KowalskyDiscussion: If you Greensburg Borough, term is defined in your conduct would restrictions therei STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 March 24, 1988 ADVICE OF COUNSEL Mr. Ronald R. Kowalsky 88 -535 528 Sidney Street SW. Greensburg, PA 15601 Re: Simultaneous Service, Borough Councilmember or Borough Mayor, Borough Sanitation Department Dear Mr. Kowalsky: This responds to your letter which was received by the State Ethics Commission on February 18, 1988 wherein you requested advice from the Commission. Issue: Whether the State Ethics Act imposes any prohibitions or restrictions upon a borough councilmember or Mayor from also being employed in the Borough Sanitation Department. Facts: You state that you are currently employed by the Southwest Greenburg Borough in the Sanitation Department. After noting that you previously served as an elected borough councilmember for 10 1/2 years, you ask if there is a conflict under the Ethics Act if you were elected or appointed to either the position of Borough Mayor or Borough Councilmember. were elected as councilmember or Mayor in, Southwest you would be a "public official" as that the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, be subject to the provisions of the Ethics Act and the n would be applicable to you. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Ronald R. Kowalsky March 24, 1988 Page 2 Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family or a business with which he is associated which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa: Commw. 529, 466 A.2d 283 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw.Ct. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or a member of his immediate family or a business with which he is associated unless it is provided for by law. Domalakes, Opinion 85 -010. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public official and as an employee in the Sanitation Department. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as an employee in the Sanitation Department. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano, Opinion 80 -007. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. A subsidiary question must now be addressed as to whether a councilmember or Mayor may receive compensation for serving as an employee of the Sanitation Department. As to whether the Ethics Act would restrict or prohibit a borough councilmember or Mayor from receiving compensation while serving as an employee of the Sanitation Department, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the State Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of the Borough Code. If, however, another provision of law somehow impacts on the provisions of the State Ethics Act or the Ethics Act accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler Opinion 85 -020. Ronald R. Kowalsky March 24, 1988 Page 3 Section 1104 of the Borough Code provides in part: "Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall, receive compensation therefor." 53 P.S. §46104. Section 1104 of the Borough Code thus precludes a counci4member or Mayor from receiving compensation for service on any board, commission, bureau or agency created by the borough. Therefore, although the councilmember or Mayor could serve as an employee of the Sanitation Department, he may not under Section 3(a) of the Ethics Act receive compensation for that position. See Muolo, Advice 87 -657; Urick, Advice 88 -514. Thus, the State Ethics Commission determined in Shugarts, Order 623, that a borough councilmember violated Section 3(a) of the Ethics Act when he performed snow plowing -services for the borough and received payment therein; the Commission reached its decision by noting that there was no statutory authorization in the Borough Code for a councilmember to receive payment for such employment, apart from the salary that he was entitled to as a councilmember. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which must be observed, one must neither offer nor accept anything of value on the understanding or with the intention that his official judgment would be influenced thereby. It Ronald R. Kowalsky March 24, 1988 Page 4 is assumed such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3(d) of the Ethics Act provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Under Section 3(d) of the Ethics Act, the Commission has applied this section, in part, by referencing the preamble of the Ethics Act, the purpose of which is to strengthen the faith and confidence of people in their government by assuring the public that the financial interests of the holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. See Section 1 of the Ethics Act, 65 P.S. 401. Under this provision, as well as Section 3(a), you as borough councilmember cit. Mayor could not participate on any matter wherein he would have a di rect or indi rect interest, such as the budgetfor the Sanitation Department. We lz, Opinion 86 -001. However, in this case, it would seem that if you choose to serve as an employee of the Sanitation Department in a non - compensated position, you would not have any direct or indirect interest in the budget and hence could participate in its preparation. Further, under the above circumstances, it appears you would not be precluded from voting in favor of its adoption, Krier, Opinion 84 -003. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As an elected councilmember or Mayor of Southwest Greenburg, you would be a "public official" subject to the provisions of the Ethics Act. Although Section 3(a) of the Ethics Act presents no per se prohibition upon a borough councilmember or Mayor simultaneously serving as an employee of the Sanitation Department, the councilmember or Mayor may not receive compensation for serving as an employee of the Sanitation Department. Under Sections 3(a) and 3(d) of the Ethics Act, you as borough councilmember or Mayor could participate in budget deliberations, provided you had no personal interest in any budgetary items, and could vote to ratify or approve the budget. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Ronald R. Kowalsky March 24, 1988 Page 5 VJD /nb Pursuant to Section 7 (9) (i i ), 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. 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. erely, Wit Vincent J. Dopko General Counsel