Loading...
HomeMy WebLinkAbout88-536 McDowellMr. Robert J. McDowell R. D. #1, Box 299 -A Ligonier, PA 15658 Dear Mr. McDowell: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 March 30, 1988 ADVICE OF COUNSEL Discussion: If you would be elected a would be "public official" as that term Act; 65 P.S. 402; 51 Pa. Code 1.1. would be subject to the provisions of restrictions therein would be applicable Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. 88 -536 Re: Simultaneous Service, Volunteer Fire Chief and Township Supervisor This responds to your letter of February 10, 1988, in which you requested advice from the State Ethics Commission. Issue:, Whether the State Ethics Act imposes any prohibition or restriction upon township supervisor from also serving as a volunteer fire chief. Facts: In your letter you state that you are a fire chief to one of the three volunteer fire companies within your township. You further state that the township is the governing body of the fire companies for which funding is provided on a yearly basis for each company as well as workmen's compensation for the firemen. After noting that you contemplate planning to run for the position of township supervisor, you ask whether you may hold the position of township supervisor and continue in your position as fire chief or any other office in the fire company at the same time. You conclude by requesting advice under the Ethics Act as to whether such simultaneous service would constitute a conflict of interest. township supervisor, you is defined in the Ethics As such, your conduct the Ethics Act and the to you. Mr. Robert J. McDowell March 30, 1988 Page 2 (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to o b t a i n 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). Section 3(a) basically provides that a public employee may not use 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 employee to obtain a gain or benefit for himself or a member Jf 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 (1983). See also Yocabet v. State Ethics Commission, . 531 A.2d 536 (1987). Thus, under this provision, a public employee 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 volunteer fire chief. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve as a volunteer fire chief. 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. Section 3(b) of the Ethics Act provides: (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 Mr. Robert J. McDowell March 30, 1988 Page 3 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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which must be observed, a public employee must neither offer nor accept anything of value on the understanding or with the intention that the public employee's judgment would be influenced thereby. It 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. 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). However, under Section 3(d) of the State Ethics Act, the State Ethics Commission may address other areas of possible conflict of interest. 65 P.S. 403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that,, the financial interests of public employees do not conflict with the public trust or create the appearance of a conflict with the public trust. Although there is no per se prohibition under the Ethics Act for you to simultaneously serve as a volunteer fire chief or some other position in the fire company and also as township supervisor, Section 3(d) of the Ethics Act would restrict you as township supervisor from participating in meetings, negotiations or discussions relative to the annual funding of the fire companies although you would not be precluded from voting on the final adoption of the township budget which would include funding for the Volunteer Fire Companies. See Krier, Opinion 84 -002. Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Mr. Robert J. McDowell March 30, 1988 Page 4 Conclusion: As a township supervisor, you would be "public official" subject to the provisions of the State Ethics Act. As a public official, you may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of Volunteer Fire Chief and township supervisor. However, under Section 3(d) of the Ethics Act, you as township supervisor could not participate in meetings, negotiations or discussions as to the funding of the Volunteer Fire Companies although you could vote on the final adoption of the township budget which, would include the funding for the Volunteer Fire Companies. Lastly, the propriety of the proposed course_of conduct has only been addressed under the Ethics Act. 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 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. Sincerely, Vincent J. Dopko, General Counsel