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HomeMy WebLinkAbout88-553 SmallwoodMr, William Lee Smallwood 1301 Wogan Road Yor!, PA 17404 -1715 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 19, 1988 ADVICE OF COUNSEL 88 - 553 Re: Simsitaneous Service, Borough Councilmember and Executive Director of a Human Service Agency Dear M -. Smallwood: This responds to your letter of March 7, 1988, in which you requested advice f. An the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a councilmember from also serving or being employed as a Executive Director of a non - profit human service agency. Facts: In your advice request you state that you are currently serving as a member of council in the City of York, Pennsylvania, and that there is a possibility that you may be employed as the Executive Director of a local non - profit 501(c) human service agency. You ask advice as to whether such simultaneous service would be prohibited under the State Ethics Act. Discussion: As a councilmember for the City of York, you are a "public official" as that term is defined in the Ethics Act. See Rider, Order 490 -R; 65 P.':,, §402; 51 Pa. Code §1.1. As such, your conduct is subject to the provilons of the Ethics Act and the restrictions therein are applicable to you. 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). M.. William Lee Smallwo_d April 19, 1988 Page 2 Scci:ion 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 es provided for by law for himself or a member of his i-nediate family or a business with which he is associated. Under this prevision, the Ethics Commission has determined that the use of office by a oublic official to obtain a gain or benefit for himself or a member of his meeiate 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 Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. - Commw. 529 (1933). Se. also Yocabet v. State Ethics Commission, Pa. Commw. , 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 and as Executive Director of a non - profit human service agency. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as a Executive Director of a non - profit human service agency. The main prohibition under the thics 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 Al fa no Opinion, 80 -007. I n the situation outlined above, you would not be serving entities with interests which are adverse to each other. It is expressly assumed that you did not use your public office as the means for obtaining this position and it is further assumed that the human service agency is not a division of the City of York. 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 foe public office would be influenced thereby. 65 P.S. 403(b). Mr. 'Wi l i i am Lee Smallwood April i. , 1988 Page 3 Reference to Section 3(b) of the Ethics Act is made in order to provide a : :omplete e- esponse to your inquiry. Under Section 3(b) of the Ethics Act cited above, which must be observed, a public official must neither offer nor accept anything of value on the understanding or with the intention that the public official's judgment would be influenced thereby. It is assumed such a situa; ion does not exist here. Reference to this Section is added not to indicate tha 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) Cther areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 55 P.S. 403(d). Under Section 3(d) of the Ethics Act, the State Ethics Commission may acdi'. ss other areas of possible conflicts of interest. 65 P.S. §403(d). The par meters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests or p.iblic official do not conflict with the public trust or create the ppea'cnce of a conflict with the public trust. Although there is no prohibition under Section 3(a) of the Ethics Act for you to simultaneously serve as a member of city council and as Executive Director of the non - profit human service agency, under Section 3(d) of the Ethics Act you should not participate in any matter concerning the human service agency that would come before City Council. Further, you must note your abstention of public record together with the reason for your abstention. Lastly, the propriety of your proposed conduct has only been addressed ur;der 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 City of York, you are a "public official" subject to the provisions of the State Ethics Act. As a public official, you ma consistent with Section 3(a) of the Ethics Act, simultaneously serve in e positions of councilmember and Executive Director of the non- profit human service agency subject to the limitations outlined above. However, under Section 3(d) of the Ethics Act, if any matter concerning the human service gency would come before City Council, you may not participate or vote in that natter and you must note your abstention of public record together with the rein 3 ns for your abstention. Mr. William Lee Sm:11wood April 19, 1983 Page 4 Lastly, the propriety r the proposed course of conduct has only been addressed under the Ethics Act:. Pursuant to Section 7(9)(ii), thi 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 ::he 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. S•ncerely, z Vincent J: Dopko, General Counsel