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HomeMy WebLinkAbout89-529 ElliottSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 18, 1989 Diane V. Elliott, Esquire 89-529 561 East Market Street P.O. Box 1306 Bethlehem, PA 18018 Re: Simultaneous Service, First Class Township Civil Service Commissioner and Democratic Committeewoman Dear Ms. Elliott: This responds to your letter of March 14, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a first class township civil service commissioner from also serving or being employed as a political committee person. Facts: You advise that you have recently been appointed to fill a vacancy as the Democratic committeewomen for the First Ward in Bethlehem Township, Northampton County, and were subsequently to appointed to fill a vacancy on the Bethlehem Township Civil Service Commission. You then quote a portion of the First Class Township Code, §627 which states, in part: "No (civil service) commissioner shall at the same time hold an elective or appointed office under the United States government, the commonwealth of Pennsylvania, or any political subdivision of the Commonwealth..." After expressing your belief that the position of Democratic committeewoman does not fall within any of the categories as set forth in Section 627 of the First Class Township Code, you conclude by requesting an opinion as to whether your position as Democratic committeewoman would be prohibited by the First Class Township Code. Diane V. Elliott, Esquire April 17, 1989 Page 2 Discussion: It is assumed for purposes of this advice that you as a First Class Township Civil Service Commissioner are a "public official" under the Ethics Act and the regulations of this Commission. 65 P.S. 5402; 51 Pa. Code 51.1. 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. 5403(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 /employee and as a political committeeperson. Basically, the Ethics Act does not state that it is inherently incompatible for a public official /employee to serve or be employed as a political committeeperson. 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 as a public official would not be serving entities with interests which are adverse to each other. Diane V. Elliott, Esquire April 17, 1989 Page 3 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). 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 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. Although you have requested an opinion as to whether your retaining your position as Democratic committeewoman in Bethlehem Township is prohibited by Section 627 of the First Township Code, that question may not be addressed in this advice since the scope of this advisory opinion only relates to the propriety of your conduct under the Ethics Act. Additionally, the question of the propriety of serving as a civil s < ?rvice Diane V. Elliott, Esquire April 17, 1989 Page 4 commissioner, traditionally a non political position, and also holding a political committeeperson position has similarly not been treated outside of the confines of the Ethics Act. Thus, 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: Assuming a First Class Township Civil Service Commissioner is a "public official" under the Ethics Act, then Section 3(e) of the Ethics Act would not restrict you from simultaneously serving in the positions of First Class Township Civil Service Commissioner and Democratic Committeewoman. 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 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 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 S2.12. such. Sincerely, y ' 1 RIB,, �� �� ✓� Vincent J. Dopko, General Counsel