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HomeMy WebLinkAbout89-504 StojakovichMs. Milicent M. Stojakovich Borough of Wall 413 Wall Avenue Wall, PA 15148 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 8, 1989 89 -504 Re: Simultaneous Service, Borough Councilmember and Authority Secretary Dear Ms. Stojakovich: This responds to your letter of January 20, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a borough councilmember from also serving or being employed as a part -time authority secretary. Facts: You state that you a councilmember of Wall Borough, Allegheny County, serving for the term from January 1, 1988 through December 31, 1991. After noting that you chaired the Street - Lights Sewers Committee, you state that the water authority is in dire need of a part -time secretary and that the president of the authority would like to pay three to four hundred dollars monthly for this position. After advising that such a salary would be a strain on authority funds, you state that you are qualified for that position and are asking a fee of $100 to $125 monthly plus expenses. You note that the proposal was highly received by council and the authority. You then question whether you would be permitted to retain your position on council and work for the authority which has its own board, finances and operations. After advising that you have talked to your solicitor who will be reviewing the Borough Code, you indicate that you seek advice from this Commission as to whether such action on your part would be prohibited. You state that if Ms. Milicent M. Stojakovich February 8, 1989 Page 2 the action is not prohibited under the Ethics Act, you realize that you would have to comply with the Borough Code. Additionally, you state that you will handle no monies and that you would refrain from voting on any matter concerning the hiring of yourself. Discussion: As a councilmember for Wall Borough, you are a "public official" as that term is defined in the Ethics Act. 65 P.S. 402; 51 Pa. Code 1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee 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 /employee 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. 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 part -time authority secretary. Basically, the Ethics Act does not state that it is inherently incompatible for a public Ms. Milicent M. Stojakovich February 8, 1989 Page 3 official to serve or be employed as a part -time authority secretary. 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 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 official must neither offer nor accept anything of value on the understanding or with the intention that the public official'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 Ms. Milicent M. Stojakovich February 8, 1989 Page 4 ensure that the financial interests of public officials do not conflict with the public trust or create the appearance of a conflict with the public trust. Under Section 3(a) of the Ethics Act, you as a councilmember could not use public office to obtain the position of authority member nor could you participate or vote on any matter concerning the authority secretary, if you are appointed to that position. In this regard it is noted that you have stated that you would refrain from voting on a matter concerning the hiring of yourself. Therefore, subject to the qualifications and limitations noted above, Section 3(a) of the Ethics Act does not preclude you as a councilmember from simultaneously serving as a part -time authority secretary. 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. Conclusion: As a councilmember for Wall Borough, you are a "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 borough councilmember and township part -time authority secretary, subject to the limitations noted above. 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 Ms. Milicent M. Stojakovich February 8, 1989 Page 5 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, 0Q,•'?Ao incent . Dopko General Counsel