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HomeMy WebLinkAbout82-540 KunkleMr. Mark A. Kunkle 11 Carverton Road Trucksville, PA 18708 Dear Mr. Kunkle: Mailing Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 May 10, 1982 ADVICE OF COUNSEL RE: Constables, Financial Interest Statements 82 - 540 This responds to your letter of October 16, 1980, in which you, as Township Manager of Kingston Township, requested an opinion from the Ethics Commission. Issue: Your communication poses two questions, one, whether an employee of an engineering firm employed by the Township may serve as a constable; and two, whether an appointed constable must file a Statement of Financial Interest. Facts: You informed us that Kingston Township, a home rule municipality, is considering the appointment of a constable. One of the candidates for the position is an employee of an engineering firm. This firm has done and will do work for Kingston Township. Discussion: The Ethics Act as codified at 65 P.S. Section 401 et seq. defines public official as Any elected or appointed official in the Execuuive, Legislative or Judicial Branch of ... a political subdivision ... 65 P.S. Section 402. Because the constable of Kingston Township will hold an appointed position in the Judicial Branch or a political subdivision, the constable is subject to the Ethics Act unless some other circumstances intervene. As explained by the S recher, 82 -532 ruling (copy attached) at the present time the State Et ics Commission is not requiring financial filings from incumbent constables (elected or appointed). This ruling applies to the second question you raise if the appointee is an incumbent to be re- appointed. This ruling does not effect the requirement that non - incumbent "candidates" for the post of constable are, in the Commission's estimation, required to file Financial Interest Statements as candidates for that office. Thus, a non - incumbent who is not currently serving as part of the "judicial system" would still be required to file a Statement of Financial Interest as mandated by the Act, 65 P.S. §404(c). The information that must be provided is specified in 65 P.S. §405. The Financial Interest Statement is f }hed accor to the Regulations promulgated by the Ethics Commission. Regulations 51 Pa. Code 4.3 provide that: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Mark A. Kunkle .day 10, 1982 Page 2 (c) Any person appointed i:,s ar official not subject to confirmation in any governing body other than those specified in subsection (b) of this section shall file a Statement of Financial Interests only with his governing body by May 1 of the year appointed or within 15 days if appointed after May 1. Thus, the potential constable who is not an incumbent must file a Financial Interest Statement with the governmental body that will appoint the constable, the Board of Supervisors. However, even assuming the constable you appoint would be within the purview of the Ethics Act, there is nothing inherently inconsistent with this same person also being employed as an employee of the Township's engineering firm . The Act does not, in general, prohibit one person from holding two posts in one governmental unit, see Dissinger, 79 -015; Coon, 79 -016; Hock, 79 -017. It does not forbid a public official from acting as a constable while doing work as an engineer for the Township. As a public official a constable has certain duties under the Ethics Act. The constable must not use his office or confidential information obtained by his holding public office to obtain financial gain for himself, his immediate family or a business with which he is associated. 65 P.S. §403(a). Thus, the constable cannot use his office or confidential information to benefit his employer, the engineering firm. Conclusion: Pending the Supreme Court's determination in the Kremer case, the Ethics Commission, at its discretion, will apply the same policy to incumbent constables as it is currently applying to incumbent members of the judiciary itself. Thus, incumbent constables, elected or appointed as incumbents or candidates for re- election or re- appointment need not file Financial Interest Statements at this time. A non - incumbent candidate for election or appointment, however, must file a Financial Interest Statement. There is no inherent prohibition against a constable being appointed who is also an employee of the Township's engineering firm. 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. Mr. Mark A. Kunkle May 10, 1982 Page 3 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, Sandra S. Chri ianson General Counsel P.S. I apologize for the long delay in responding. We tried several times from April 26 - May 6, 1982 to contact you by phone to explain this delay. Basically, pending Court cases and the need to analyze and apply Court rulings caused us to "hold" responding. On the question of the appointment of the person subject to your original request, assuming he was a non - incumbent and did receive the appointment, our delay in responding compels me to conclude that this particular person need not retroactively file a Financial Interest Statement. This Advice will operate prospectively only.