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HomeMy WebLinkAbout89-574 HalstedMr. John S. Halsted 20 N. Church Street West Chester, PA 19380 Dear Mr. Halsted: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 16, 1989 89 - 574 Re: Simultaneous Service, County Commissioner and Delaware River Basin Commissioner. This responds to your letter of September 11, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Offical and Employee Ethics Law imposes any prohibition or restrictions upon a County Commissioner from also serving or being employed as a Commissioner for the Delaware River Basin Commission. Facts: As solicitor for Chester County you are requesting on the behalf of Irene B. Brooks, County Commissioner an Opinion regarding her appointment to the Delaware River Basin Commission. On September 7, 1989, President Bush executed a commission appointing Ms. Brooks as a member of the Delaware River Basin Commission, a position which receives compensation from the U.S. Treasury. After notification of her appointment, Ms. Brooks instructed the Controller and Treasurer of Chester County to cease the payment of her salary, compensation or benefits due her as a county commissioner effective Septemer 7, 1989. Ms. Brooks requests an opinion as to whether her continued service as a commissioner without salary, compensation or other benefit is implicated under the Ethics Law. Discussion: As a Commissioner for Chester County, Ms. Brooks is a "public official" as that term is defined in the Ethics Law and hence she is subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. Mr. John S. Halsted Page 2 Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be intluenced thereby. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent Mr. John S. Halsted Page 3 conflict arising if Ms. Brooks were to serve both as a public official /employee and as Delaware River Basin Commissioner. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a Delaware River Basin Commissioner. The main prohibition under the Ethics Law 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 Smith Opinion, 89 -010. In the situation outlined above, Ms. Brooks would not be serving entities with interests which are adverse to each other. However, if a situation arises where Ms. Brooks or the respective entities she represents develop an adverse interest, then she must remove herself from that particular matter and disclose the nature of her interest in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). Section 3(j) of the Ethics Law. If such a situation would arise, she may seek additional advice from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed in this advice is the applicability of the County Code. Conclusion: As a Commissioner for Chester County, Ms. Brooks is a "public official" subject to the provisions of the Ethics Law. As a public official /employee, she may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of County Commissioner and Delaware River Basin Commissioner. 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 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 Mr. John S. Halsted Page 4 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 52.12. Sincerely, ( VJD /emg Vincent ''. Dopko, Chief Counsel