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HomeMy WebLinkAbout89-544 MascaraMark E. Mascara 25 West Beau Street Washington, PA 15301 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 23, 1989 89 -544 Re: Simultaneous Service, Borough Councilman, Zoning Code Enforcement Officer Dear Mr. Mascara: This responds to your letter of April 21, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a borough councilman from also serving as a zoning code enforcement officer. Facts: You state that you represent Harry W. Reis, Vice President and Councilman of Charleroi Borough. After noting that Mr. Reis is considering employment as a Borough Zoning Code Enforcement Officer, you request advice as to whether Mr. Reis would be in a conflict if he were to serve as Councilman and Vice President of the Borough Council and accept the duties as Zoning Code Enforcement Officer. You state that Mr. Reis would be paid $75.00 per month for his services as a Councilman and that he would also receive compensation as Zoning Code Enforcement Officer although he is not certain as to the exact amount of the salary in that position. You conclude by requesting advice as to whether Mr. Reis may simultaneously serve as a Zoning Code Enforcement Officer as well as a member of Borough Council under the Ethics Act. Discussion: As a Councilman "public official" as that term 65 P.S. 5402; 51 Pa. Code S1.1. to the provisions of the Ethics are applicable to him. for Charleroi Borough, he is a is defined in the Ethics Act. As such, his conduct is subject Act and the restrictions therein As to whether the Ethics Act would restrict or prohibit Mark E. Mascara May 23, 1989 Page 2 Councilmen from also serving as a Zoning Code 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 Borough Code. If, however, another provision of law somehow impacts on 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 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. S403(a). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes, Opinion 85 -010. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, in and through his public office, would also be a use of his office in violation of the Act. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific benefit or financial gain is prohibited by law. See Allen, Advice 86 -518. In order to Mark E. Mascara May 23, 1989 Page 3 determine whether a particular benefit or gain is strictly prohibited by law, the provisions of the Borough Code must be reviewed. "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 statue and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor... 53 P.S. 46104." In addition to the foregoing provision of law, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. 5403(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. As such, this Commission has previously determined that such a conflict would arise when a public official attempts to serve one or more interests that are adverse. See Alfano, Opinion 80 -007; Fritzenaer, Opinion 80 -008. Within the above provision of law, this Commission has previously addressed questions regarding simultaneous service by one individual in incompatible positions. See Nelson, Opinion 85 -009. The Ethics Commission has also determined that any public official must forego any compensation that he or she had already accrued in situations where a conflict exists. Kincr, supra. Based upon the above provisions of law, it appears that Mr. Reis as Council member may serve on any board, commission, bureau or agency created by the Borough but he could not receive compensation for that position. See Muolo, Advice 87 -657; Urick, Advice 88 -514. In Shuaarts, Order 623, the State Ethics Commission determined 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. Therefore, you are advised that although Mr. Reis may serve as Zoning Code Enforcement Officer, he may not receive any compensation from serving in that position. Lastly, the propriety of the proposed conduct has only been addressed Mark E. Mascara May 23, 1989 Page 4 under the Ethics Act. Conclusion: As a Councilmember for Charleroi Borough, Mr. Reis is a "public official" subject to the provisions of the Ethics Act. As a public official he may, consistent with the provisions of the Ethics Act, simultaneously serve in the positions of Borough Council Member and Zoning Code Enforcement Officer but he may not receive compensation for the position of Zoning Code Enforcement Officer. 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. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, • 014 Vincent J'. Dopko, General Counsel