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HomeMy WebLinkAbout84-529 FloodDavid A. Flood, Esquire Lock Drawer 599 Bellefonte, PA 16823 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 10, 1984 ADVICE OF COUNSEL RE: Incompatibility, Office of Mayor, County Treasurer Dear Mr. Flood: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 84 -529 This responds to your letter of January 26, 1984, in which you requested Advice from the State Ethics Commission. Issue: You ask whether there is any thing incompatible in one person simultaneously serving in the Office of Mayor and the Office of County Treasurer. Facts: You indicate that you have been authorized by the Mayor of the Borough of Bellefonte, hereinafter, the Borough, and the Council of the Borough where you serve as solicitor to request an opinion as to whether the Office of Mayor of the Borough is incompatible or in conflict with the Office of Treasurer. You indicate that the Borough is duly operating pursuant to the provisions of the Borough Code of 1966 as supplemented and amended and operates under the Council -Mayor form of government. The current Mayor of the Borough is presently acting in that capacity on a part -time basis. As Mayor of the Borough, he serves in an executive capacity which is largely ceremonious and does not act as a magistrate or other judicial officer. The Mayor's basic charge is to supervise the police department within the Borough. The Mayor does not serve on Borough Council and only acts to vote as a member of Council to break a tie of Council and as Chairman of Council once a year at the Council's re- organization meeting. Consequently, he is not a member of the legislative body of any town, township, borough, or city as referred to in the Fifth Class County Code. The current Mayor of the Borough, however, sought the office of County Treasurer in the County of Centre, hereinafter, the County. The County is a fifth class county where one of its elected officials is the County Treasurer. The Mayor of the Borough was successful in securing the post of County Treasurer and as of January 1, 1984, he has begun concurrently holding the elected office of County Treasurer and Mayor of the Borough. Neither office, as you understand it, requires the Mayor's full -time attention nor does either office conflict with the other in that the actual duties of the Mayor and the David A. Flood, Esquire February 10, 1984 Page 2 County Treasurer are quite diverse. The duties of the Mayor are recounted above. As County Treasurer, the Mayor is largely concerned with the Counties finances, the payment of bills, the collection of delinquent taxes, the collection of dog license fees, etc. None of these duties, in your estimation, appear to conflict actually or apparently with the duties of this individual as Mayor of the Borough. You indicate that it is your conclusion, with the support of the Mayor's Association, that the office of Mayor is not in conflict or incompatible with the Office of County Treasurer. Discussion: As an elected official within the Borough and the County, this individual who seeks to simultaneously serve in the Office of Mayor and as County Treasurer is a "public official" as that term is defined in the State Ethics Act. Accordingly, his conduct both as Mayor and as County Treasurer must conform to the requirements of the State Ethics Act. However, there is nothing in the Ethics Act or in the opinions of the Ethics Commission which would declare that it is inherently incompatible for one individual to serve simultaneously in the office of Mayor of the Borough and as County Treasurer. Basically, the Ethics Act declares that there is a conflict of interest where one person would seek to serve or represent the interest of two or more persons. See Alfano, 80 -007. Thus, only if and when, the Mayor, in his capacity as Mayor, would seek to represent persons whose interest would be adverse to those of the County Treasurer's office would there be any apparent conflict in the situation which you pose. Such a circumstance could conceivably arise if, as Mayor, or as City Treasurer, this individual were asked to or be required to represent the constituency of the Borough before the office of the County Treasurer or vice - versa. However, these situations are not so likely to occur as to require this individual to refrain from serving in both posts. If such situations were to arise, any conflict could be resolved by abstention of this individual with respect to his representation in a particular case or matter which gave rise to any conflict. Thus, while the simultaneous service of this individual is not, per se, prohibited by the Ethics Act, should any situations arise in which this individual as either Mayor or County Treasurer be called upon to pass upon or represent interest before the Borough or the County Treasurer's Office which would be in conflict with those interests in which he either as Mayor or Country Treasurer must uphold, he should refrain from such representation or participating in any decisions of the Borough or County Treasurer's Office related to same. David A. Flood, Esquire February 10, 1984 Page 3 Conclusion: There is no incompatibility or conflict, per se, if one individual were to serve simultaneously as a Mayor of this Borough and as the elected County Treasurer under the provisions of the Ethics Act. The cautions with respect to possible particular situations in which a conflict might arise as outlined above, should be observed and met. Should any specific circumstances arise in which you need further direction as to your duties or obligations under the State Ethics Act, you should feel free to contact us again. 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp Sincerely, Sandra S. Christianson General Counsel