HomeMy WebLinkAbout83-535 McClearyMr. C. Kenneth McCleary
R -3, Box 242
Stewartstown, PA 17363
Mailing Address
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPF)ONE: (717) 783 -1610
April 12, 1983
ADVICE OF COUNSEL
23 - S "3S
RE: Township Supervisor; Building Code Enforcement Officer; Real Estate
Salesman
Dear Mr. McCleary:
This responds to your letter of January 6, 1982, in which you requested
advice from the State Ethics Commnission.
Issue: You ask whether you, as an elected township supervisor, may serve
simultaneously as a building code enforcement officer as well as work
full -time as a real estate salesman.
Facts: You write that you are an elected township supervisor and that you
also serve as secretary- treasurer to the Board of Supervisors. You state that
because it has been difficult to retain a building code enforcement officer,
the Board has asked you to fill that position, which does not generate much
income.
You state that you will also be working full -time as a real estate
salesman, and you are concerend with whether your position as building code
enforcement officer will interfere with either your job as a real estate
salesman on your posision as an elected township supervisor.
Discussion: As an elected township supervisor, you are a public official
within the definition of that term under the Ethics Act. See 65 P.S. 402. As
such, you are subject to the provisions of the Ethics Act, 65 P.S. 401 et
seq.
The Ethics Act requires you to avoid conflicts of interest or even the
appearance of a conflict of interest with the public trust. See 65 P.S. 401
and 403. However, in its opinion in Alfano, 80 -007, the Commission indicated
that serving or holding two positions would constitute a conflcit of interest
only where the individual in such service would represent the interests of two
or more persons whose interests are adverse to one another. Your holding the
position of elected township supervisor and being secretary- treasurer to the
Board of Supervisors while at the same time holding the compensated position
of building code enforcement officer creates no apparent conflict of interest
discernible by the Commission.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. C. Kenneth McCleary
April 12, 1983
Page 2
Of course, should you as secretary - treasurer of the Board of Supervisors
be required to vote on matters placed before the Board by you as the building
code enforcement officer, you should abstain from such participation,
discussions, or votes while you continue to hold both positions.
With regard to your posision as a full -time real estate salesman, there
would be no inherent conflict of interest between either your posision as
township supervisor or your position as building code enforcement officer
provided that certain guidelines are followed.
To avoid even the appearance of a conflict of interest, you should
abstain from participation as a township supervisor or building code
enforcement officer with respect to any matter before the Board or your office
in which you are directly involved as a real estate salesman. Coughlin,
79 -063.
Similarly, you may not use either of your official positions or any
confidential information received therefrom to obtain financial gain for
yourself, your family or your business. Of course, you may engage in real
estate sales activities vis -a -vis real estate not located within the township
without regard to the above - mentioned abstention requirement. Norris,
80 -053.
In addition, if you know at the time of an official vote that you, as a
real estate salesman, will be asked to work for the person /entity who will be
affected by the vote, you should refrain from such participation, and you
should place the reasons for abstention on the record. See Sowers, 80 -050,
regarding reasonable expectation of employment and Rudnitsky, 81 -525.
Conclusion: As an elected township supervisor and secretary - treasurer to the
Board of Supervisors, you are not precluded from serving as the building code
enforcement officer so long as you conform your conduct to the guidelines set
forth above.
As a full -time real estate salesman, there is also no apparent conflict
of interest with either your position as a township supervisor or as a
building code enforcement officer so long as you further comform your conduct
to the guidelines developed above.
Mr. C. Kenneth McCleary
April 12, 1983
Page 3
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated 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.
CW /rdp
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.
Sincerely,
S.ndra S. Chri tianson
General Counsel