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HomeMy WebLinkAbout86-634 McCuddenMr. David T. McCudden, P.E. 2615 Marietta Avenue Lancaster, PA 17601 STATE ETHICS COMMISSION P.O. BOX 11470 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 Meiling Address: December 12, 1986 ADVICE OF COUNSEL 86 - 634 Re: Simultaneous Service, Assistant County Engineer, Township Supervisor Dear Mr. McCudden: This responds to your letter of December 4, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions upon the simultaneous service by one individual as a township supervisor and a Assistant County Engineer. Facts: You advise that the Township of East Hempfield in Lancaster County, Pennsylvania, is currently considering candidates to fill the unexpired term of one of the township supervisors. You indicate that you have applied for this position. You further advise that you serve as a public employee in Lancaster County in the position of Assistant County Engineer. You have requested the advice of the State Ethics Commission as to whether there is any conflict of interest or prohibition within the purview of the State Ethics Act regarding your simultaneous service in these two positions. You indicate that you have contacted both your county solicitor and the personnel director for the county and they nave assured you that based on the Second Class County Code, there is no conflict of interest. You have, therefore, requested the advice of the State Ethics Commission in relation to this situation within the purview of the State Ethics Act. As part of your advisory opinion request, we have reviewed your classification description in the position that you hold with the county. As an Assistant County Engineer, you are responsible for planning, organizing, implementing, directing and reviewing all activities as assigned by the county engineer. Generally, this regards professional supervisory engineering work State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. David T. McCudden, P.E. December 12, 1986 Page 2 requiring familiarity with administrative methods and procedures as well as the exercise of professional engineering judgement on important technical details. You are responsible for assisting with the operation and maintenance of county property, buildings, grounds and bridges. General administrative direction is received from the county engineer and the planning department as applicable. You also work with other county departments in coordinating engineering activities and you may also be involved with other private and public agencies. You prepare studies on stormwater management and prepare specifications and obtain bids for construction and maintenance projects. We have reviewed your position description and have incorporated that document herein by reference. Discussion: As an Assistant County Engineer, you are clearly a public employee as that term is defined in the.State Ethics Act. 65 P.S. 5402. As such, your conduct must conform to the requirements of that law. Camp, 81 -006. Generally, the State Ethics Act presents no per se or absolute prohibitions upon the simultaneous service by a public employee in two different public positions. The Ethics Act does provide as 'follows: Section 3. Restricted activities. (a) No public official or public employee 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). Within the above provision of law, no public official may use his public position in order to obtain financial gain for himself. He may not use confidential information obtained in his position for similar purposes. This Commission has held that this requirement is applicable even where the public employee is serving in two public positions and the benefit would be to the second public employer. Welz, 81 -006. The Ethics Act also provides that this Commission may address other areas of possible conflict. 65 P.S. §403(d). The parameters of the types of activities encompassed by this particular provision of the State Ethics Act are generally determined through a review of the intent and purpose of that law. Generally, the Ethics Act was promulgated in order to isure the public that the interest of their public officials do not conflict with the public trust. 65 P.S. 5401. A conflict of interest would exist in any situation Mr. David T. McCudden, P.E. December 12, 1986 Page 3 where a public official attempted to serve one or more interests that are adverse. See, Alfano, 80 -007. In this respect, you are advised, that while there appears to be no per se prohibition upon your service as a township situations where you may be called upon in either of those two positions to take action or perform duties in relation to your other position that you should abstain from so acting. In this respect, in any situation where you are called upon as an assistant county engineer to perform activities that may, somehow, relate to the township, or where as a township supervisor you are called upon to act in relation to a matter that relates to your public employer, at the county level, you should abstain from participating therein. See, Welz, 81 -006. (Township supervisor must abstain in certain situations regarding actions that involve county officials when said supervisor is employed by the county.) Your abstention, in such matters, must be publicly noted and appropriately recorded in township minutes or county records. Thus, as long as you appropriately abstain, as a township supervisor in relation to any action that deals with your employer, the county, and as long as you are the assistant county engineer, you do not participate in matters that relate to East Hempfield Township, there would be no prohbition upon your simultaneous service in these positions. Conclusion: While the Ethics Act presents no per se prohibitions upon your simultaneous service as an assistant county engineer and a township supervisor, she Act would require your abstention in matters that ycu are required to take in one position and that may relate to your other position. Your abstention in such matters should be publicly noted and appropriately recorded. 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 cunduct 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. Sin John J. n • o Gen Counsel