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HomeMy WebLinkAbout87-607 OBrien_ Ms. Kathalyn O'Brien 11 Fairway Drive Greensburg, PA 15601 Dear Ms. O'Brien: Marling Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108-1470 August 13, 1987 ADVICE OF COUNSEL 87 -607 Re: Simultaneous Service, Jury Commissioner, Board Member of Non - Profit Rehabilitation Center This responds to your letter of July 17, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether, as a Jury Commissioner you may also serve as or undertake activity as member of the board of a non - profit rehabilitation center. Facts: You currently serve in the elective position of Jury Commissioner for Westmoreland County. You request advice as to whether you may serve on the Board of Directors of a non - profit corporation. Specifically, the corporation is a psychosocial rehabilitation center which serves the chronically mentally ill in Westmoreland County. The non - profit rehabilitation center, hereinafter the Center, is funded by the Westmoreland County Office of Mental Health and Mental Retardation. As a member of the board, you state that you receive no compensation, have r,J financial interests and do not hold any of its stock in the Center. Further, as a Jury Commissioner, you have no involvement with the contracts between the county and the Center. As a board member of the Center, your duties and responsibilities would be primarily to see that the program is properly administered as per its guidelines. Pursuant to the by laws, you note that no assets or income from the Center shall benefit any board members and the Center may not participate or intervene in any political activity. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Ms. Kathalyn O'Brien August 13, 1987 Page 2 Discussion: In your capacity as a Jury Commissioner, you are to be considered a "public official" as that term is defined in the State Ethics Act. See Section 2, State Ethics Act, 65 P.S. 402. As a public official, your conduct must conform to the provisions of the State Ethics Act. The most pertinent provision of the State Ethics Act is Section 3(a) of the Ethics Act 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). Of course, under this provision, you may not use your public position to secure any financial gain for the Center. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public official and as a member of the board of the Center. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve as board member. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that you may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano, 80 -007. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. The County Code provides, in part, for the following: (a) No elected county officer or county solicitor shall, at the same time, serve as a member of the legislative body of any cityk borough, town or township of any class, nor as treasureror tax collector of any city, borough, incorporated town or township, nor as school director of any school district, nor as a member of any board of health. 16 P.S. §402 Since the County Code prohibits any county officer from acting in certain enumerated incompatible offices and since the center is not one of the listed offices, Section 402 would have no applicability to your situation. Lastly, this Advice is issued solely under the Ethics Act and should not be understood to serve as "clearance" to operate as outlined above under any codes, statutes, ordinances, regulations, etc. other than the Ethics Act. Ms. Kathalyn O'Brien August 13, 1987 Page 3 Conclusion: Under the circumstances outlined above, there is no inherent prohibition under the Ethics Act for you to serve both as a public official and as board member of the Center. Accordingly, you may, consistent with the Ethics Act, serve in these capacities simultaneously. 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. Sincerely, Vincent 1. Dopko General Counsel