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HomeMy WebLinkAbout90-515 DamianDear Mr. Damian: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1990 Mr. August C. Damian 90 -515 Damian & Damian Attorneys at Law 800 Mutual Building 816 Fifth Avenue Pittsburgh, PA 15219 -4780 Re: Simultaneous Service, Borough Councilmember and School Crossing Guard. This responds to your letter of January 11, 1990, 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 Borough Councilmember from also serving or being employed as a School Crossing Guard. Facts: As the Solicitor for Sharpsburg Borough, Allegheny County, Pennsylvania, you request an advisory opinion regarding the application of Act 9 of 1989 to a paid borough employee who also serves as a councilmember with the borough. The individual has been employed as a school crossing guard for years by the borough at a set hourly wage to perform those duties. On January 2, 1990 the individual was appointed by the members of the council to fill a vacancy which is also a compensated position. You inquire as to whether the councilmember may continue to be employed as a school crossing guard and simultaneously serve as a councilmember. Based upon Deitrick, Opinion 89 -022, you assert that simultaneous service in this instance should not be prohibited because the position of school crossing guard is not a borough office. You advise that the councilmember would not vote or participate as a public official in matters regarding the position of school crossing guard nor would he vote on setting the compensation for this position. In addition, he would comply with Section 3(j) of the Ethics Law by Mr. August C. Damian Page 2 publicly announcing the nature of his interest as well as filing a memorandum with the secretary recording the minutes. Discussion: As a Councilmember for Sharpsburg Borough, the individual is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code S1.1. 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 and no public Mr. August C. Damian Page 3 official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. 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 the individual were to serve both as a public official /employee and as school cross guard. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as school crossing guard. 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. Smith Opinion, 89 -010. In the situation outlined above, the individual would not be serving entities with interests which are adverse to each other. In Deitrick, supra, the Commission determined that a borough councilmember who was employed on a part time basis to perform street management and snow removal functions and who was also employed as a certified water works operator was not precluded from running for the office of mayor of the borough because his two positions of employment were not considered as borough offices within the restrictive language of Section 1104 of the Borough Code, 53 P.S. S46104. However, the individual was restricted from participating or voting on matters involving those positions and was directed to observe the disclosure requirements of Section 3(j) of the Ethics Law. Based upon the foregoing decision, the individual in this case would not be precluded from simultaneously serving as school crossing guard because such is not a borough office. However, if a situation arises regarding the position of school crossing guard, then he must remove himself from that particular matter and disclose the nature of his interest in a mitten memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought 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. Mr. August C. Damian Page 4 Conclusion: As a Councilmember for Sharpsburg Borough, the individual a. "public official" subject to the provisions, of the Ethics Law. As a public official /employee, the individual may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of borough councilmember and school crossing guard. 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 S2.12. ncerely, • t/cAAYl Vincent . Dopko, Chief Counsel