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Home My WebLink About17-548 RosenfeldZil STATE ETHICS COMMISSION 309 F NANCEv BUILDING RO. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL August 2, 2017 To the Requester: Mr. Martin Rosenfeld 17 -548 Dear Mr. Rosenfeld: This responds to your letter dated June 1, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission'). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 PaS. § 1101 et seg., would impose prohibitions or restrictions upon an individual( with regard to simultaneously serving as a part -time county deputy sheriff and a constable. Facts: You request an advisory from the Commission based upon the following ssmitted facts. On May 18, 2017, you accepted a position as a part-time Deputy Sheriff for Elk County ( "County "). You state that you will start in the position of part-time County Deputy Sheriff as soon as you have completed all of the preliminary testing. You are seeking election as a Constable in Jay Township. You state that if you would be elected as a Constable, you would not take office until after January 2018. You ask whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to simultaneously serving as a part -time County Deputy Sheriff and a Constable. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S.§ 1107(10), (11). An advisory only affords a defense to the extent the requester has trut ully disclosed all of the material facts. If you would be elected as a Constable, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities FAX: (717) 787 -07806 0 Web Site: www.ethics.state .pa.us 0 e -mail: ethicsC�?state.pa.uS Rosenfeld, 17 -548 August Page 2 (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: § 1102. 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. The term 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 of 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public off iciallpublic employee is prohibited from using the authority of public officelemplYem c ent or confidential information received by holding such a public position for the private uniary benefit of the public officiallpublic employee himself, any member of his immeate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. With regard to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. PA. CONST. art. VI, § 2. There does not appear to be any statutorily - declared incompatibility that would preclude you from simultaneously serving as a part -time County Deputy Sheriff and a Constable. Turning to the question of conflict of interest, where simultaneous service would place the public officiallpublic employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear tote impossible, as a practical matter, for the ublic official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily- declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual Rosenfeld, 17 -548 ug�2017 Page 3 would be required to abstain from participation. In this case, there does not appear to be an inherent conflict that would preclude simultaneous service as a part-time County Deputy Sheriff and a Constable. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) of the Ethics Act. Cf., Rile , Opinion 00 -008 (holding that a county warrant enforcement bureau administrator who, by virtue of his public employment with that county, had direct and immediate access to information pertaining to all outstanding warrants in such county, would have a conflict of interest in serving that county's warrants as a deputy constable for compensation). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) on May 18, 2017, you accepted a position as a part -time Deputy Sheriff for Elk County ( "County "); (2) you will start in the position of part-time County Deputy Sheriff as soon as you have completed all of the preliminary testing; (3) you are seeking election as a Constable in Jay Township; and M if you would be elected as a Constable, you would not take office until after January 8, you are advised as follows. If you would be elected as a Constable, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a part-time County Deputy Sheriff and a Constable. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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, provided the requester 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 orif you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Si n c ly, Robin M. HHittie111 Chief Counsel