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HomeMy WebLinkAbout87-617 BeaverMr. Richard S. Beaver Borough Manager Borough of Johnsonburg P.O. Box F Johnsonburg, Elk County, PA 15845 Re: Simultaneous Service, Borough Manager /Secretary and Member of the Board of Cable Television Company Dear Mr. Beaver: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 October 20, 1987 ADVICE OF COUNSEL 87 -617 This responds to your letter of September 17, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether, as a borough manager /secretary, you may also serve as or undertake activity as a member of the Board of Directors of a community cable television company . Facts: You are currently the Manage r /Secretary of the Borough of Johnsonburg. You state that the borough has a community owned and operated cable television company. Furthermore, everyone in the borough that has cable television service pays an initial charge of $125.00 for becoming a stockholder in the company, followed by the payment of a monthly fee. You state that since you have the cable television in your home, you are the holder of a stock certificate. You also note that the borough has issued an exclusive franchise to this cable television company to operate on a contract basis in the borough at no cost to the company. Lastly, you state that you have been asked to serve on the Board of Directors of the cable television company for which you would receive $65.00 per month for your services and ask whether your acceptance of the offer would create a conflict of interest in light of your position as borough manage r /secretary. Mr. Richard S. Beaver October 20, 1987 Page 2 Discussion: In your capacity as a borough manager /secretary, you are a "public employee" as that term is defined in the State Ethics Act. See Section 2, State Ethics Act, 65 P.S. 402. As a public employee, 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) which provides: 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). Under this provision, you may not use your public position to secure any financial gain for the Johnsonburg Community Television Company. 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 employee and as a member of the Board of Johnsonburg Community Television Company. Basically, the Ethics Act does not state that it is inherently incompatible for you as a public employee to serve as a member of the Board of Directors of the Johnsonburg Community Television Company. 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 e t ties with interests which are adverse to each other. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Mr. Richard S. Beaver October 20, 1987 Page 3 Finally. reference must be made to Section 3(b) of the Ethics Act in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which you must observe, you must neither offer nor accept anything of value on the understanding or with the intention that your official judgment would be influenced thereby. Is is assumed that such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3(d) of the Ethics Act provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). The parameters of the activities encompassed by the above provision of law generally are determined through the review and intent and purpose of the Ethics Act. The Ethics Act was promulgated in order to insure the public that the financial interest of their officials do not conflict with the public trust. In this respect, you as borough manager /secretary must abstain from participating in any matter relating to the Johnsonburg Community Television Company. Your abstention should be publicly noted and the reason for such abstention should also be noted. Lastly, the State Ethics Commission has only addressed your question under the State Ethics Act; it has not considered the applicability of any other statute, code, regulation or any other code of conduct. 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 /or employee and as Board of Directors of the Johnsonburg Community Television Company. Accordingly, you may, consistent with the Ethics Act, serve in these capacities simultaneously, subject to the restrictions as outlined above. 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. Mr. Richard S. Beaver October 20, 1987 Page 4 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, 4 Likto Vincent J. Dopko General Counsel