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HomeMy WebLinkAbout87-524 KrauseMr. William H. Krause 695 North Hanover Pottstown, PA 19464 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 24, 1987 ADVICE OF COUNSEL Re: Kennedy Borough Council, Employee Local Fire Company Dear Mr. Krause: 87 -524 This responds to your letter of February 17, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition upon your candidacy for the office of Borough Council while you are currently serving as an employee of a local fire department that receives funding from the borough. Facts: You advise that you are currently considering a nominating petition for the purpose of securing a Borough Council seat in the Borough. of Pottstown, Montgomery County, Pennsylvania. You are also employed as a driver for the Philadelphia Steam Fire Engine No. 1 Company . This entity is a non - profit corporation, volunteer fire company. The Borough of Pottstown annually contributes an appropriation to the fire company for various uses including salaries. As a paid driver for this entity, you would, therefore, receive part of your salary from borough funds. You have requested the advice of the State Ethics Commission regarding what, if any, prohibitions would be applicable under the State Ethics Act. Discussion: Generally, the State Ethics Act presents no prohibition upon the activities of a candidate for public office who is not currently serving in a public position. As a paid driver for the non - profit corporation, it does not appear that you would currently be considered a public official or a public employee within the purview of the State Ethics Act. As such, the State Ethics Act would present no per se prohibition upon your candidacy for the office of Borough Council while you are currently serving in the capacity of an employee of the volunteer fire company. In addition to the foregoing, the Ethics Act would appear to present no per se prohibition upon your simultaneous service if elected as a Borough Council Member in the Borough of Pottsville and an employee of the aforementioned company. Generally, as a borough council person you would, of course, be considered a public official as that term is defined in the State Ethics Act. See Domalakes, 85 -010. Mr. William H. Krause March 24, 1987 Page 2 Generally, the Ethics Act provides 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). As a public official within the purview of the State Ethics Act, you could not use your public position in order to obtain any financial gain for a business with which you are associated. In addition to the foregoing provision of law, the State Ethics Commission is also authorized to address other areas of possible conflicts. 65 P.S. § 403(d). Generally, the parameters of this particular provision of the State Ethics Act are determined through the intent and purpose of the law as set forth in the preamble thereto. Generally the State Ethics Act provides, that public office is a public trust and the financial interests and activities of a public official should not conflict with that public trust. 65 P.S. § 401. Such a conflict of interest would arise, at any time, when a public official attempts to serve one or more interests that are adverse. As a result and within the above provisions of law, you, if elected borough councilman, should not participate in any matter that relates to the volunteer fire company by which you are employed. As such, you should not participate in the borough's review, consideration, and decision to fund or award any benefit to that entity. Additionally, your abstention from these matters and the reasons, therefore, should be publicly noted and recorded in appropriate borough minutes. In addition to the foregoing, it should be noted that the Borough Code provides as follows: Except as otherwise provided in this act, no borough official either elected or appointed, who knows or who by the exercise of reasonable diligence could know, shall be interested to any appreciable degree either directly or indirectly in any purchase made or contract entered into or expenditure of money made by the borough or relating to the business of the borough, involving the expenditure by the borough of more than one thousand dollars ($1000) in Mr. William H. Krause March 24, 1987 Page 3 any calendar year, but this limitation shall not apply to cases where such officer or appointee of the borough is an employee of the person, firm or corporation to which the money is to be paid in a capacity with no possible influence on the transaction, and in which he cannot be possibly benefited thereby either financially or otherwise. But in the case of the councilman or mayor, if he knows that he is within the exception just mentioned he shall so inform council and shall refrain from voting on the expenditure or any ordinance relating thereto, and shall in no manner participate therein. Any official or appointee who shall knowingly violate the provisions of this section shall be subject to surcharge to the extent of the damage shown to be thereby sustained by the borough and to ouster from office, and shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine not exceeding one thousand dollars ($1000), or not exceeding one hundred eighty days' imprisonment, or both. 53 P.S. §46404 If you are elected to the position of borough councilman and are also simultaneously serving as a employee of the fire company that receives the borough expenditures, you should seek appropriate advice regarding whether the above provisions are applicable. Conclusion: The State Ethics Act presents no per se or absolute prohibition upon your candidacy for the office of borough council while you are currently employed as a member of a volunteer fire company that receives borough funds. Additionally, the State Ethics Act would present no per se prohibition upon your simultaneous service as a member of borough council and an employee of that fire company. You must, however, abstain from participating as a borough councilmember in any matter that relates to the volunteer fire company. Additionally, you should seek appropriate advice if elected to borough office regarding the provisions of the Borough Code. 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 Mr. William H. Krause March 24, 1987 Page 4 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, John J on ino Acting General Counsel