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HomeMy WebLinkAbout89-501 MarkleMr. Alan L. Markle 89 -501 615 Amsler Ridge Road Sewickley, PA 15143 Re: Simultaneous Service, Borough Councilmember, Borough Sewage Enforcement Officer Dear Mr. Markle: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 2, 1989 This responds to your letter of January 9, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibitions or restrictions upon a borough councilmember from also being employed in the Borough as a Sewage Enforcement Officer. Facts: You state that you are currently the appointed Sewage Enforcement Officer in the Borough in which you reside. You indicate that you plan to run for the position of borough council for the term 1990 through 1994. After expressing your understanding that, if elected, you could not vote on any issue that would benefit you personally in the appointed position, you question whether you may continue in the position as Sewage Enforcement Officer for the Borough while campaigning and secondly during the period of your term in office. You also inquiry that if your resignation as Sewage Enforcement Officer is necessary, you would like advice as to what point in time that would be required. Discussion: As Borough Sewage Enforcement Officer, you are a public employee as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code X1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein would be applicable to you. Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his Mr. Alan L. Markle February 2, 1989 Page 2 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Under the Ethics Act, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as public official and as a Sewage Enforcement Officer. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as a Sewage Enforcement Officer. The main prohibition under the Ethics Act and Opinions of the State 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 may receive compensation for serving as a Sewage Enforcement Officer. As to whether the Ethics Act would restrict or prohibit a borough councilmember from receiving compensation while serving as a Sewage Enforcement Officer, 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 Mr. Alan L. Markle February 2, 1989 Page 3 Borough Code. If, however, a provision of that law somehow impacts upon 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. 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. 546104. Section 1104 of the Borough Code thus precludes a councilmember from receiving compensation for service on any board, commission, bureau or agency or office created by the borough. Therefore, although the councilmember could serve as a Sewage Enforcement Officer, 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; Rowalskv, Advice 88 -535. 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. 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. 5401. Under this provision, as well as Section 3(a), you Mr. Alan L. Markle February 2, 1989 Page 4 as borough councilmember could not participate in any matter wherein you would have a direct or indirect interest, such as the budget for the salary of the Sewage Enforcement Officer. Welz, Opinion 86 -001. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Sewage Enforcement Officer you are a public employee subject to the provisions of the Ethics Act. Although Section 3(a) of the Ethics Act presents no per se prohibition upon a Sewage Enforcement Officer from also serving as a borough councilmember, the councilmember may not receive compensation for serving as Sewage Enforcement Officer. Under Sections 3(a) and 3(d) of the Ethics Act, you as borough councilmember could not participate in any matter wherein you would have a direct or indirect interest such as the budget for the position of Sewage Enforcement Officer. Lastly, the propriety of the proposed 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 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 52.12. Sincerely, 0,44 Vincent i'. Dopko, General Counsel