HomeMy WebLinkAbout79-550 MalkamesTO:
DISCUSSION:
STATE ETHICS COMMISSION
P. 0. Box 1179
Harrisburg, PA 17108
ADVICE OF CHIEF COUNSEL
November 20, 1979
Advice Number 79 - 550
William G. Malkames, Esquire
School District of the City of Allentown
31 S. Penn Street
P. 0. Box 328
Allentown, PA 18105
RE: A school board solicitor serving as prosecutor
before the school board.
FACTS:
On September 27, 1979, William G. Malkames wrote the
Commission asking whether it would be possible for him
to serve in a dual capacity as solicitor for the School
District of Allentown and prosecutor before that school
district with respect to charges against an employee.
He cited several cases in both the Supreme Court and
the Commonwealth Court which held that a school board
solicitor did not improperly comingle prosecutorial and
judicial functions during dismissal hearings where the
school solicitor served as prosecutor.
He asked whether he is a public employee under
Act 170, and if such, would there be a conflict of interest
for him to handle the prosecutorial function.
The issue is whether serving a dual role as
prosecutor before the school board and solicitor for
that school board constitutes a violation of Section 1
of the Act where it requires that holders of public
office "present neither a conflict nor the appearance of
a conflict with the public trust."
Inasmuch as the Court has already spoken on this
matter, and has decided there is no conflict, this
Commission follows the Common Law and finds no conflict
in such service.
It is well settled that the Common Law cannot be
changed by statute except by express intent. No such
express intent exists in Act 170.
79 550
William G. Malkames
October 26, 1979
page 2
Being a prosecutor on behalf of the school board
can easily be considered as part of the solicitor
function. Termination proceedings are not before an
independent, partial body, but before the school board.
This Commission has already held that a school
board solicitor is a public employee. Levin, • 1979 -36.
CONCLUSION:
Serving in the dual role as school board solicitor
and prosecutor before that board does not violate
Act 170.
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.
A personal appearance before the Commission and a
formal opinion will be issued upon your request, if you
feel this reply does not suffice.
This letter is a public record and will be made
available as such.
D ID RITTENHOUS MORRISON
Chief Counsel