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Home My WebLink About89-588 FobesMr. Joseph F. Fobes, Sr. Supervisor, Clinton Township Box 204-C, R.D. #1 Waymant, PA 18472 Dear Mr. Fobes: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 =1610 ADVICE OF COUNSEL November 30, 1989 89 -588 Re: Conflict, Township Supervisor, Inspector, Compensation, Simultaneous Service This response to your letter of October 20, 1989 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a second class township supervisor from serving in the capacity as a junkyard inspector with or without compensation. Facts: At a September meeting of the Board of Supervisors of Clinton Township, you were directed to "check on the junkyard...to see if it is in compliance with the ordinance and come back to the...meeting with a report on it." You also enclose a copy of the Clinton Township Ordinance No. 21. After noting that you are not employed by the township in any capacity, you inquire as to whether you may be designated to inspect a junkyard when there is no provision in the ordinance for appointing such an inspector. You inquire as to whether the supervisor could serve in such a capacity if there was such a provision in the ordinance and if so whether the supervisor could receive compensation for that service. You also inquire as to whether a conflict would arise if you were operating an unlicensed junkyard if you were found eligible to inspect junkyards as directed. You also ask whether potential violators would be treated equally within the same time frame to minimize any conflict of interest that might otherwise arise. Lastly you enclose a notice from the board threatening you with disciplinary action unless you bring a report on the junkyard situation to the November meeting. Mr. '3pseph F. Fobes, Sr. Page 2 Discussion: As a Supervisor for Clinton Township, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code §1.1. 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 or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. Mr. Joseph F. robes, Sr. Page 3 In applying the above provisions of the Ethics Law to the instant matter, it is noted that Section 514 of the Second Class Township Code allows township supervisors to be employed only as superintendents or roadmaster or laborers. 53 P.S. 65514. The foregoing are the enumerated working positions in which a township supervisor may serve provided the compensation is set by the township auditors. Therefore, although it is clear that you could not serve and receive compensation as a junkyard inspector for the township since it is not one of the enumerated working positions, there is no prohibition to your serving without compensation as a junkyard inspector as part of your duties as elected township supervisor. It must be emphasized that the above constitutes an interpretation of your question under Section 3(a) of the Ethics Law; reference to the Second Class Township Code has only been referenced not to provide an interpretation of that section, but merely to reference it to the extent that it impacts upon the Ethics Law. You may under Section 3(a) of the Ethics Law simultaneously serve as elected township supervisor and as an uncompensated junkyard inspector since there does not appear to be any real possibility of any private pecuniary benefit or inherent conflict arising if you were to serve both as public official and as junkyard inspector. However, if you were operating an unlicensed junkyard, Section 3(a) would preclude you from inspecting that junkyard or participating or voting in any way on matters involving that junkyard that would come up before the township. In the event that you would serve as uncompensated junkyard inspector and you did indeed operate an unlicensed junkyard, Section 3(j) of the Ethics Law would require you to publically announce and disclose the nature of your conflict as a junkyard inspector and as an operator of an unlicensed junkyard of public record and in a written memorandum filed with the person responsible for recording the minutes of the township meeting. Regarding the other inquiries which you have posed such as whether you may be designated to inspect a junkyard or whether all potential violators would be treated equally within the same time frame to minimize conflict of interest or the propriety or legality of any contemplated disciplinary action against you, those questions may not be addressed in this advice since that is beyond the scope of the Ethics Law and the functions of this 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 Mr. Joseph F. Fobes, Sr. Page 4 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Supervisor for Clinton Township, you are a "public official" subject to the provisions of the Ethics Law. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Second Class Township Supervisor and uncompensated junkyard inspector. However if you own an unlicensed junkyard, you may not as a junkyard inspector inspect, participate or vote in any matter concerning the junkyard or any matter that would come before the township with regard to that junkyard and must make the necessary disclosures as required by Section 3(j) of the Ethics Law. 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 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 §2.12. Sincerely, `` 414 Vincent . Dopko, Chief Counsel