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HomeMy WebLinkAbout88-500 HormellOliver N. Hormell, Esquire 423 Third Street Claifornia, PA 15419 Dear Mr. Hormell: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 1, 1988 ADVICE OF COUNSEL Re: Simultaneous Service, Municipal Authority, District Magistrate 88 - 500 This responds to your letter of [December] 29, 198(7), in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a municipal authority member from also serving as a district magistrate. Facts: In your advice request you state that you represent a municipal authority organized and existing under the Municipal Authorities' Act of 1947 and that one of the members of the current board of directors of the authority has been elected as a district magistrate in the locality where the authority's main office is located. You also state that the magistrate /member may, at some time in the future, be called upon to decide a matter in which the authority is involved. You conclude by requesting advice as to whether it is proper under the Ethics Act for an individual to simultaneously serve as a district magistrate and a board member of a municipal authority which is located within the jurisdiction of that magistrate's district. Discussion: As a member for board of directors of a municipal authority, the individual is a "public official" as that term is defined in the Ethics Act. See Kreger, No. 595; 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 municipal authority board member from also serving as a district magistrate, 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 Municipal Authorities' Act. Oliver N. Hornell. Esquire February 1, 1988 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." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. 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 unless it is provided for by law. Domalakes, 85 -010. Thus, under this provision, he may not use his public position to secure any financial gain for himself. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if he were to serve both as a public official and as district magi strate. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve as district magistrate. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that he 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, he would not be serving entities with interests which are adverse to each other. 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 be determi ned 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 Oliver N. Hormell, Esquire February 1, 1988 Page 3 conflict would arise when a public official attempts to serve one or more interests that are adverse. See Alfano, supra; Fritzenger, 80 -008. Under Section 3(d), the municipal authority board member, as to any matters that he knew or could reasonably foresee or anticipate that might come up for a decision in his capacity as district magistrate, should not participate and should note his abstention of public record together with the reason for his abstention. Lastly, it must be noted that the propriety of the proposed course of conduct has only been considered under the Ethics Act. Specifically, not addressed in this advice is the applicability of the Judicial Code to a district magistrate who also serves as a municipal authority board since the conduct of a district magistrate is regulated by the judiciary. Conclusion: A member for the municipal authority is a "public official" subject to the provisions of the Ethics Act. The Ethics Act imposes no per se prohibition upon a municipal authority board member from serving as a district magistrate. Under Section 3(d), the municipal authority board member, as to any matters that he knew or could reasonably foresee or anticipate that might come up for a decision in his capacity as district magistrate, should not participate and should note his abstention of public record together with the reason for his abstention. Lastly, the propriety of the proposed course of conduct of the municipal authority board member has only been addressed under the Ethics Act. 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 crimi nal proceedi ng, 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 •a ny 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 w i l l 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. Si ncerely, Vincent J. Dopko General Counsel