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HomeMy WebLinkAbout87-618 WolfSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 October 20, 1987 ADVICE OF COUNSEL Mayor Clair L. Wolf 114 East Main Street Ephrata, PA 17522 Re: Simultaneous Service, Borough Mayor, County Prothonotary Dear Mr. Wolf: 87 -618 This responds to the letter of September 21, 1987, in which you requested advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any per se prohibition upon a borough mayor running for the office of County Prothonotary and simultaneously serving in both offices. Facts: You currently serve as the elected Borough Mayor in Ephrata, Lancaster County. You are considering running for the office of County Prothonotary in Lancaster County, Pennsylvania and have requested the opinion of the State Ethics Commission regarding the propriety of such simultaneous service. Discussion: As a borough mayor, you are a public official as that term is defined in the State Ethics Act and are, therefore, subject to the requirements of that law. 65 P.S. §402; Sowers, 80 -050; Welz, 86 -001. Generally, the State 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). Mayor Clair L. Wolf October 20, 1987 Page 2 Within the above provision of law. this Commission has, on a number of occassions, determined that a public official who is campaigning for another public office may not use the benefits of the office that he is currently holding in order to advance his election campaign. Cessar, 82 -002. As such, you are advised that you may not use the facilities, personnel, equipment, postage, stationery, or other benefits of the Office of Borough Mayor to advance your campaign for County Prothonotary. The Ethics Act presents no other per se or absolute prohibition upon a public official who is currently holding office, running or campaigning for another office. In addition to the foregoing, and in relation to whether you may simultaneously serve in said positions if elected, once again, the Ethics Act presents no per se prohibitions upon such conduct or activities. Generally, the Ethics Act, as noted above, prohibits you from using your public position in order to obtain a financial gain for yourself. 65 P.S. §403(a). In this respect, you would be prohibited from participating in either of your public positions in a matter that related to the other office. Thus, as a borough mayor, you could take no action and you must abstain from participating in any matter coming before the borough that relates to the Office of the County Prothonotary or matters within the jurisdiction of that office. Similarly, as County Prothonotary, you could not participate in any matter that involves the Borough of Ephrata. In addition to the foregoing, the Ethics Act authorizes the State Ethics Commission to address other areas of possible conflicts of interests. 65 P.S. §403(d). The parameters of the types of activities encompassed by this particular provision of law are generally determined through a review of the intent of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to insure the public that the interests of their officials do not conflict with the public trust. 65 P.S. §401. Generally, a conflict of interest develops whenever a public official attempts to serve one or more interests that are adverse. See Nelson /McElrath, 85 -009R. Within this provision of law, the State Ethics Commission has, in the past, determined that a public official may not simultaneously serve in public positions if those positions or offices are incompatible in fact. Incompatible offices would be determined through a review of the functions and activities that are to be performed by the official in each office. In the instant situation, as a borough mayor, you are responsible for the general affairs of Ephrata Borough. As County Prothonotary, your duties and powers are statutorily set forth. 42 Pa. C.S.A. §2737. A review of the duties and functions of the Office of County Prothonotary do not appear to present any prohibition upon your simultaneously serving as Borough Mayor and County Prothonotary. Mayor Clair L. Wolf October 20, 1987 Page 3 However, it must be noted that the Ethics Commission has only addressed your question under the Ethics Act; it has not considered the applicability of any other statute, code, ordinance or code of conduct, other than the Ethics Act. Specifically, the Ethics Commission has not and can not consider the the possible application of 16 P.S. 402(a), concerning incompatible county offices or 53 P.S. §46021 and 53 P.S. §46022, of the Borough Code. Conclusion: The State Ethics Act presents no per se prohibition upon a borough mayor running for the Office of County Prothonotary. The official may not use his public position in order to obtain a financial gain for himself or to otherwise advance his election campaign. Similarly, the State Ethics Act presents no prohibition upon the simultaneous service by a public official in one or more public offices. Once again, his conduct, as an official, is governed by the State Ethics Act and he may not use his position to obtain a financial gain for himself. The public official must also avoid other possible conflicts of interest and must, therefore, abstain from participating in any matter that affects his own interests in his other public position. 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 J. Dopko General Counsel