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Home My WebLink About88-552 BurketMs. Margaret Burket 537 Spruce Street Roaring Spring, P A 16673 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April '.9, 1988 ADVICE OF COUNSEL v- 88-552 Re: Si,Altaneous Service, Borough Councilmember and School District Employee Dear P" '-s. aurket: Th. responds to your letter of March 3, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a membe;' of borough council from also serving or being employed as a part -t employee by a school district. Facts;: In your letter you state that you were hired by the Spring Cove School District as a part -time cafeteria employee in February, 1988. Prior to that time fiom 1945 to 1968 you worked for a company in Roaring Spring without retirement benefits. Thereafter, you advise that you worked for SKF Industries for 18 years for the benefits but that in 1985 all employees age 55 were asked to retire due to imports. After noting that you have worked for 40 years with only 18 years partial retirement, you advise that you accepted a part -time position with the school district as a cafeteria emloyee. You note that you are presently a member of the Roaring Spring Borough Council. You con.:lude by requesting advice under the Ethics Act as to whether you may be employed part -time by the school district given your membership on the Roaring Spring Borough Council. Discussion: As a councilmember for Roaring Spring Borough , you are a "public official" as that term is aef;ned n the Ethics Act. See Rider, Order 490 -R; 65 P.S. §402; 51 Pa. Code §1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. iAs . Margaret Burket April 19, 1988 Page 2 Section 3(') of he Ethics Act provides Sect ir 3. Restricted activitie (a) No public official or public emp loyee shall use his public office or any confidential ;,formation received throug! his holding public office to obtain financial gain other than compensation provided by law i'or 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 or a business with which he is associated. 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 or a business with which he is associated 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 Cc,mmonwealth 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. Comm. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or a member of his immediate family or a business with which he is associated unless it is provided for by law. Domalakes Opinion, 85 -010. 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 with one governmental body and as part -time employee with the school district, a separate governmental body. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as a part -time employee with the school district. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano Opinion, 80 -007. In the situation outlined above, you would not be serving entities 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 Ms. Margaret Burket April 19, 1988 Page 3 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 F.S. 403(b). Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section 3(b) of the tthics Act cited above, which must be observed, a public official must neither offer nor accept anytMng of value on the understanding or with the intention that the public off it:'al's judgment would be influenced thereby. It is assumed such a sit :s„: ion does not exist here. Reference to this Section is added not to indva`e that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. 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). However, under Section 3(d) of the Ethics Act, the State Ethics C .,mission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this pr.1vision of law may generally be determined by reviewing the purpose and in - :nt of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public official do not conflict with the public trust or create the appearance of a conflict with the public trust. In the instant matter, since as borough councilmember you are associated with one governmental body and as a part -time cafeteria employee with the school district you are associated with a separate governmental body, it does not appear that there is any adverse interest on your part in these two positions and further it does not appear that there could be any use of public of ice on your part to obtain financial gain other than compensation provided b. law. Accordingly, you may, consistent with Section 3(a) of the Ethics Act, simultaneously serve as a member of the borough council and be employed as a part -time cafeteria employee with the Spring Cove School District. However, under Section 3(d) of the Ethics Act, you should not participate in any matter on borough council pertinent to the school district and you must note your abstention of public record together with the reasons for your abstention. Ms. Margaret Burket April 19, 1983 Page 4 Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: As a councilmember for Roaring Spring Borough, you are a "public official" subject to the provisions of the State Ethics Act. As a public official, you may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of councilmember and part -time employee of a school district. Under Section 3(d) of the Ethics Act, you should not participate in any matter on borough council pertinent to the 'chool district an you must note your abstention of public record together with the reasons for your abstention. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 7 (9) (i i) , 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 cf in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, i f 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, (y Vincent J. Dopko, General Counsel