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HomeMy WebLinkAbout83-519 Gaffney1 Mr. John F. Gaffney Timoney, Knox, Hasson & Weand 12 E. Butler Avenue P.O. Box 119 Ambler, PA 19002 Meiling Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1810 March 7, 1983 ADVICE OF COUNSEL RE: School Crossing Guard - Borough Councilmember Dear Mr. Gaffney: 83 -519 This responds to your letter of Janaury 6, 1983, in which you, in your capacity as solicitor for the Borough of Ambler, requrested advice from the State Ethics Commission. Issue: You ask whether a school crossing guard for the Borough of Ambler may also serve as a Borough Councilman in either an elected or appointed capacity without constituting a conflict of interest. Facts: You write the Ethics Commission in your capacity as solicitor for the Borough of Ambler. The Borough Council asked whether a school crossing guard may also serve as a Borough Councilman, whether elected or appointed. You state that under the Borough Code the operation of the Police Department is under the direction of the Mayor yet the Borough Council on the Police Department are inexorably connected. You are concerned that it would be difficult for a councilman to be objective if he is a member of the Police Department, considering a myraid of problems from budget to law enforcement. You are also concerned that it would not be appropriate for a councilman to abstain from voting in many instances which may involve the Police "Department. You are of the further opinion that, even if there is no direct conflict under the provisions of the Ethics Act, and even if there is not an incompatibility in fact or direct conflict of interest, such a person could not be compensated for services performed for a school crossing guard, or perhaps for his services. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. John F. Gaffney March 7, 1983 Page 2 Discussion: An elected or appointed Borough Councilman is a public official subject to the provisions of the Ethics Act, 65 P.S. 401 et. seq. Section 3(a) of the Act requires that no public official shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Additionally, Section lfof the Act states that the overriding purpose of the Act "strengthening the faith and confidence of the people of the state in their government ", can best be achieved by assuring the people that the financial interest of holders and /or candidates for public office p neither a conflict nor the appearance of a conflict with the public 65 P.S. 401. Neither these provisions nor the Ethics Act in general state that there is a per se conflict of interest if a person should become a Borough Councilman even though he currently is a school crossing guard, provided certain guidelines are followed. However, to avoid even the appearance of a conflict of interest, the Councilman should abstain from participation on the Council with respect to any matter before the Council in which he is directly involved or affected as a school crossing guard. Similarly, the Councilman may not use his position on the Council or any confidential information received therefrom to obtain financial gain for himeself (as a crossing guard), his family, or his business. He may not, under Section 3(b) of the Ethics Act, 65 P.S. 403(b), allow his conduct on Council to be influenced by the promise of future or continuing employment as a crossing guard. Specific reference must also be made to Section 3(c) of the Act, which provides as follows: (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). Mr. John F. Gaffney March 7, 1983 Page 3 Under the provisions of this Section it is clear that no public official may secure a contract valued at more than $500 with the governmental body with which he is associated (here the Borough Council) without having obtained that contract after an open and public process. In this case, if the Counciman is already employed as a crossing guard, that employment apparently pre -dated the crossing guard becoming a Borough Councilman and so would not have to comply with the open and public requirements of Section 3(c) of the Ethics Act. In light of this discussion, no inherent conflict of interest exists so long as the crossing guard, acting iR his capacity as Borough Councilman, abstains from voting in Council on matters that would directly effect or benefit him in his capacity as a school crossing guard. The question of whether or not being a school crossing guard is incompatible with being a Borough Councilman under the Borough Code is not within our jurisdiction to determine. As stated, the Ethics Commission does not believe that an incompatibility exists under the Ethics Act, but the answer to this question under the more restrictive municipal code is open for your review and opinion. Conclusion: So long as the requirements of Sections 1, 3(a) and 3(c) of the Ethics Act are met there is no per se prohibition against the school crossing guard becoming a Borough Councilmember and being compensated as such. This Advice does not and cannot construe the provisions of the Borough Code which may apply to this situation. 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. CW /rdp Sincerely, tuAt4 Sandra S. e C ristianson General Counsel .