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HomeMy WebLinkAbout90-531 FacchineDear Mr. Facchine: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 26, 1990 Mr. Michael G. Facchine 90 -531 Cross Road Brockport, PA 15823 Re: Simultaneous Service, Second Class Township Supervisor, PennDot Employee. This responds to your letter of February 12, 1990 with an attachment, 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 also serving or being employed as an employee of PennDot. Facts: You have submitted a letter to which is attached a letter of the Assistant Counsel in charge of the Contract, Aviation and Mass Transit Section of the Commonwealth of Pennsylvania, Department of Transportation, hereinafter PennDot. The letter reflects that you are a Horton Township Supervisor who has dealings with PennDot in its administration of liquid fuels tax funds. After advising that you as a PennDot employee are subject to the Governor's Code of Conduct and the State Adverse Interests Act, the Assistant Counsel notes that you may be subject to Public Official and Employee Ethics Law and that you seek written advice as to the propriety of your dealings with the Department relative to the Liquid Fuels Tax Fund. Discussion: As a Supervisor for Horton 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. 5402; 51 Pa. Code 51.1. Section 3(a) of the Ethics Act provides: 3 Mr. Michael G. Facchine Page 2 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 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 Mr. Michael G. Facchine Page 3 real possibility of a private pecuniary benefit or inherent conflict arising if a second class township supervisor were to serve both as a public official /employee and as a PennDot employee. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a PennDot employee. 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, you would not be serving entities with interests which are adverse to each other. However, if a situation arises where you or the respective entities you represent develop an adverse interest, then you must remove yourself from that particular matter and disclose the nature of your interest in a written 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. Conclusion: As a Supervisor for Horton 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 PennDot employee. 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 Mr. Michael G. Facchine Page 4 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. 76. Vincent J. Dopko, Chief Counsel