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HomeMy WebLinkAbout89-509 SandsKenneth E. Sands, Jr., Esquire 528 Elm Street Reading, PA 19601 Dear Mr. Sands: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 1, 1989 89 -509 Re: Simultaneous Service, Third Class City Treasurer and Auditor General Employee This responds to your letter of January 31, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a Third Class City Treasurer from also serving or being employed in the Auditor General's Office. Facts: In a telephonic communication you have advised that you are specifically requesting an advisory opinion on behalf of a public employee in the Pennsylvania Department of the Auditor General as to whether that individual may hold the office of treasurer for a third class city. Discussion: As an employee for the Auditor General, the individual is a "public employee" as that term is defined in the Ethics Act. 65 P.S. 402; 51 Pa. Code 1.1. As such, the individual's conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to the individual. Section 3(a) of the Ft- !_cs 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 Kenneth B. Sands, Jr., Esquire March 1, 1989 Page 2 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. Comm. 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, there does not appear to be a real possibility of any financial gain or inherent conflict arising if the individual were to serve both as a public employee and as third class city treasurer. Basically, the Ethics Act does not state that it is inherently incompatible for a public employee to serve or be employed as a third class city treasurer. 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, the individual 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 Kenneth B. Sands, Jr., Esquire March 1, 1989 Page 3 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, 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 employee's do not conflict with the public trust or create the appearance of a conflict with the public trust. Although the Ethics Act does not per se preclude this individual from simultaneously serving as third class city treasurer and employee in the Auditor General's Office, the Ethics Act would restrict the individual in the event that he would be called upon as an employee of the Auditor General to perform audit functions of his office as third class city treasurer. Although the foregoing scenario seems unlikely since a third class city treasurer's office would probably not be dealing with state funds which would be the basis for the Auditor General's review, the individual could not participate and would have to notify his superior in writing together with the reasons for his recusal if such a situation would ever occur. 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. Specifically not addressed in this advice is the applicability of the Third Class City Code in that it does not involve an interpretation of the Ethics Act. Kenneth B. Sands, Jr., Esquire March 1, 1989 Page 4 Conclusion: As a employee for Auditor General, the individual is a "public employee" subject to the provisions of the State Ethics Act. As a public employee, the individual may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of employee of the Auditor General and third class city treasurer. However, under Section 3(d) of the Ethics Act, the individual, as an employee of the Auditor General could not participate in any audit function of the third class city treasurer's office; in the unlikely event that such an audit review would occur, he would have to notify his superior in writing of his recusal together with his reasons for his non - participation. 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 material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as 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