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HomeMy WebLinkAbout83-579 WhippleMr. Harold D. Whipple P.O. Box 81 Morrisdale, PA 16858 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 July 28, 1983 ADVICE OF COUNSEL 83 -579 RE: Dual Employment; DER Maintenance Repairman; Township Water Authority Board Member Dear Mr. Whipple: This responds to your letter of May 6, 1983, in which you requested advice from the State Ethics Commission. Issue: You asked whether any conflict of interest exist where you hold the position of DER Maintenance Repairman concurrently witholding a position as a working Board member of the Morris Township Water Authority. Facts: You are employed by the Department of Environmental Resources (DER), Bureau of State Parks, as a Maintenance Repairman II at the Parker Dam State Park. As such, you are responsible for performing various skilled and semi - skilled tasks in the repair and maintenance of machinery, buildings, bridges, and equipment. You are responsible for maintenance of buildings, as well as maintenance of water and sanitary systems. You also perform construction, rehabilitation, and repairs when necessary. You are also a working Board member for the Morris Township Water Authority hereinafter, the Authority. You state that you and another Board member are responsible for performing necessary testing to monitor drinking water supplied to the Authority. You also investigate water system problems, read water meters four times a year, and are responsible for contacting a Board - appointed contractor to make repairs when necessary. You further state that you do not act as the purchasing engineer for the Authority because all purchasing and expenditure of funds is done through the collective agreement of all Board members. You are not compensated for attending Board meetings or for any other functions as a Board member. The only compensation you receive derives from your performance of maintenance services for the Authority, and for these duties, you are paid on a part -time, hourly basis as the need arises. You state that you do not believe that there is any conflict of interest between these two positions, but you have, however, requested advice from the State Ethics Commission. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Harold D. Whipple July 28, 1983 Page 2 Discussion: Assuming, without deciding, that you as a DER Maintenance Repairman II, are a public employee for the purposes of this Advice, it can be stated that the Ethics Act itself does not contain any prohibition against the simultaneous service as both a state employee and an Authority Board member of part -time Authority worker. This conclusion, however, does not address any inherent incompatibility of such activity under any code, regulation or statute other than the Ethics Act. Our response, therefore, is limited to the questions presented under the provisions of the State Ethics Act. You should note that non - compensated appointed officials such as Authority Board members have been generally excluded from the definition of "public official" as appointed, unpaid officials under the Ethics Act, 65 P.S. 402, until the Supreme Court's ruling in Snider v. State Ethics Commission, Pa. , 43 A.2d 593 (1981) cast doubt upon that exclusion. While the Commission has not finally ruled upon the impact of this decision and has not held non - compensated members of authorities to be "public officials" we will provide our response assuming that you were covered by the Ethics Act as a DER employee and this Advice approaches the question as though you are covered under the Act as a DER employee. In any event, 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(a). In its opinion in Alfano, 80 -007, the Commission indicated that serving or holding two positions would constitute a conflict of interest only where such service would require an individual to represent the interests of two or more persons whose interests are adverse to one another. In your situtation, we cannot discern any per se conflict of interest by holding the positions of DER Maintenance Repairman II, uncompensated member of the Morris Township Water Authority Board, and compensated part -time employee of the Morris Township Water Authority. You should, however,.,note that Sections 3(a) and 3(b) of the Ethics Act provide that no public employee may use his public office to obtain financial gain other than compensation provided by law for himself or accept any thing of value, including the promise of future employment, based on the understanding that his official conduct would be influenced thereby. We present these cautions only as guides for future conduct so that you may be aware of these provisions of the Ethics Act. Of course, should you as a DER Maintenance Repairman II be required to pass upon any matters concerning the Morris Township Water Authority, you must abstain from participation in such matters. Likewise, should you as a Morris Township Water Authority Board member be required to pass on any matters presented to the Board conerning your specific responsibilities as a DER Maintenance Repairman II or as a compensated (part -time) Authority employee, you must abstain from participation in such matters. Mr. Harold D. Whipple July 28, 1983 Page 3 Conclusion: While you may or may not be covered as either a public employee or a public official under the Ethics Act, you should be aware of the guidelines discussed above. If you conform your conduct to these guidelines, neither a conflict, nor the appearance of a conflict of interest with the public trust should arise, assuming some application of the Ethics Act to you. The Commission notes that this request does not raise any questions as to the employment process by which you were selected to serve as a compensated employee of the Morris Township Water Authority, and this advice, therefore, does not address the application of Section 3(c) of the Ethics Act to your case. 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. 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. cc: Nicholas DeBenedictis, Secretary Sincerely, andra S. ristianson General Counsel