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HomeMy WebLinkAbout89-600 SommersDear Mr. Sommers: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 27, 1989 14r. Mitchell A. Sommers, Esquire 89 -600 Attorney at Law 1375 W. Main Street Ephrata, PA 17522 Re: Simultaneous Service, Constable and Third Class City Treasurer. This responds to your letter of November 16, 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 third class city treasurer from also serving or being employed as a constable. Facts: Harold Sommers currently holds the position of elected constable but has recently been elected to the position of Lancaster City Treasurer. Although Mr. Sommers has served as elected constable for Drumore Township, Lancaster County since 1986, the majority of his work as a constable is performed out of the consolidated court which consists of four magisterial districts from Lancaster City and one from Lancaster Township. Mr. Sommers was elected to the post of Lancaster City Treasurer on November 7th and will take office in January 1990 for Lancaster which is a third class city. Due to the concerns raised by one district justice of the consolidated court, Mr. Sommers is concerned as to whether his duties as city treasurer would conflict with those of elected constable and hence seeks advice as to whether a conflict would exist under the Ethics Law. Discussion: As a City Treasurer for Lancaster, Mr. Sommers will become a "public official" as that term is defined in the Ethics Law and hence he will be subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. Mr. Mitchell A. Soitmners Page 2 Since a constable is not a public official /employee under the Ethics Law, this advice will be limited in scope to the question of whether Mr. Sommers as city treasurer would have a conflict in that position in light of his other position as elected constable. Specifically not addressed in this advice is whether Mr. Sommers in his capacity as an elected constable would have a conflict given his position as city treasurer. Any potential conflict of Mr. Sommers in his capacity as a constable would have to be directed to the judiciary. 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. Mr. Mitchell A. Sommers Page 3 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 influenced 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 conflict arising if Mr. Sommers were to serve both as a public official /employee and as constable. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as constable. 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, Mr. Sommers would not be serving entities with interests which are adverse to each other. However, if a situation arises where Mr. Sommers or the respective entities he would represent develop an adverse interest, then he must remove himself from that particular matter and disclose the nature of his interest in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, you 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 Third Class Township Code. Conclusion: As a City Treasurer for Lancaster, Mr. Sommers will be a "public official" be subject to the provisions of the Ethics Law. As a public official /employee, he may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of city treasurer and constable. 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 -ether civil or criminal proceeding, providing the requestor has disclosed Mr. Mitchell A. Sommers Page 4 such. 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 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. Vincent J. Dopko, Chief Counsel