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