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HomeMy WebLinkAbout87-649 FrankhouserGary J. Frankhouser, Esquire 107 East Main Street Uniontown, PA 15401 STATE ETHICS COMMISS!ON 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 22, 1987 ADVICE OF COUNSEL 87 - 649 Re: Simultaneous Service, School Director, County Controller Dear Mir. Frankhouser: This responds to your letter of November 16, 1987, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a school director from also serving as a county controller. Facts: You state that you are the solicitor for the Laurel Highlands School District and that one of the members of the school board has been elected to the position of county controller in Fayette County. You also state that the position of county controller is salaried with the county and involves the auditing of all county offices. You conclude by requesting advice from this Commission as to whether there is any conflict under the Ethics Act for a school board member to serve also in the capacity as a county controller. Discussion: As a school director for the Laurel Highlands School District, the member is a "public official" as that term is defined in the Ethics Act. See Weaver, 85 -014; 65 P.S. §402; 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. As to whether the Ethics Act would restrict or prohibit a school director from also serving as a county controller, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the State Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of the School Code or County Code. If, however, another provision of law somehow impacts on the provisions of 'the State Ethics Act or the Ethics Act accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler, 85 -020. Gary J. Frankhouser, Esquire December 22, 1987 Page 2 Section 3(a) of the Ethics Act 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family. In addition to the foregoing, this Commission has also held, in the past, that a public official within the above provision of the State Ethics Act may not, through his public position, receive any financial gain to which he is not entitled. Domalakes, 85 -010. In this respect, the Commission has determined if a particular statutory enactment prohibits an official receipt of a particular benefit, then that official 's receipt of such a prohibited benefit, in and through his public office, would also be a use of his office in violation of the Act. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific benefit or financial gain is prohibited by law. See, Allen, 86 -518. In order to determine whether a particular benefit or gain is strictly prohibited by law, the provisions of the County Code must be reviewed. §402. Incompatible Offices (a) No elected county officer or county solicitor shall, at the same time, serve as a member of the ` legislative body of any city, borough, town or township of any class, nor as treasurer or 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 Gary J. Frankhouser, Esquire December 22, 1987 Page 3 The County Code does not appear to contain any exceptions to the above provision that is applicable in the instant situation. Therefore, if the member of the school board takes office and attempts to simultaneously serve in both of these provisions, he would be doing so contrary to the provisions of the County Code. Further, if this public official were to serve as a county controller while simultaneously serving as school director , he would be holding a position of school director which is expressly prohibited in law for him to hold. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, the Ethics Commission may apply the Ethics Act to determine that a conflict exists based upon the statutory incompatibility. Johnson, 86 -004. As a result of the foregoing, any salary, benefits or gain which the public official would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain that the public official would receive would be a gain other than compensation provided for by law. King, 85 -025. In addition to the foregoing provision of law, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials do not conflict with the public trust. As such, this Commission has previously determined that such a conflict would arise when a public official attempts to serve one or more interests that are adverse. See Alfano, 80 -007; Fritzenger, 80 -008. Within the above provision of law, this Commission has previously addressed questions regarding simultaneous service by one individual in in compatible positions. See Nelson, 85 -009. The Ethics Commission has also determined that any public official must forego any compensation that he has accrued to date in situations where a conflict exists. King, supra. Conclusion: As a school director for Laurel Highland School District, the member of the school board is a "public official" subject to the provisions of the Ethics Act. That public official may not, consistent with the provisions of the Ethics Act, simultaneously serve in the positions of school director and county controller. 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. Gary J. Frankhousec', Esquire December 22, 1987 Page 4 Finally, if you disagree with this Advice o 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