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Home My WebLink About88-631 YakopecStephen Yakopec, Jr., Esquire Professional Corporation 800 Grant Street 58th Floor Pittsburgh, PA 15219 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1988 88 -631 Re: Simultaneous Service, Township Commissioner and Township Building Inspector Dear Mr. Yakopec: This responds to your letter of August 24, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a first class township commissioner from also serving or being employed as a township building inspector. Facts: After stating that you represent the Township of Springdale, you request an advisory opinion on behalf of Mr. Jack Cowles, an elected township commissioner. You state that the building inspector of Springdale Township recently resigned and no one has applied to fill the vacancy after public notice of the availability of the position. After advising that the township is in need of a building inspector to perform those duties and issue building permits for new developments in the township, you state that Mr. Cowles has volunteered his services for the position. You express your view that there is no prohibition upon Mr. Cowles from simultaneously serving as building inspector and first class township commissioner under the First Class Township Code or Ethics Act. After noting that Mr. Cowles could not vote on his own appointment, you pose two questions; whether the first class township commissioner is prohibited from also serving as building inspector as long as he abstains from voting on his own appointment and secondly, whether the first class township commissioner is prohibited from receiving compensation allocated for the position of building inspector if he serves in such position. Stephen Yakopec, Jr., Esquire September 26, 1988 Page 2 Discussion: As a first class township commissioner for Springdale Township, Mr. Cowles is a "public official" as that term is defined in the Ethics Act. See Tempero, Order 565, 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. 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if Mr. Cowles were to serve both as a public official and as building inspector. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as a building inspector. 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 Stephen Yakopec, Jr., Esquire September 26, 1988 Page 3 entities whose interests may be adverse. See Alfano Opinion, 80 -007. In the situation outlined above, he would not be serving entities with interests which are adverse to each other. Section 3(b) of the Ethics Act provides: (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 employee or candidate for public office would be influenced thereby. 65 P.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 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 situation does not exist here. Reference to this Section is added not to indicate 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. 5403(d). However, under Section 3(d) of the Ethics Act, the State Ethics Commission may address other areas of possible conflicts of interests. 65 P.S. 5403(d). The parameters 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 of public official's do not conflict with the public trust or create the appearance of a conflict with the public trust. Stephen Yakopec, Jr., Esquire September 26, 1988 Page 4 Thus, under the Ethics Act, Mr. Cowles could not vote on his own appointment as you noted in your letter of request. Additionally, although the Ethics Act would not prohibit Mr. Cowles from receiving compensation as a building inspector, he could not participate or vote as to the setting of the salary or any increases for the position of the building inspector. Likewise, he could not participate or vote if any matter would arise concerning his conduct or duties as a building inspector. He must note his abstention in these instances of public record together with the reason for his abstention. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a first class township commissioner for Springdale Township, Mr. Cowles is a "public official" subject to the provisions of the State Ethics Act. As a public official, he may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of first class township commission and township building inspector. However, under Section 3(d) of the Ethics Act, he may not vote for his own appointment, he may not participate or vote regarding the setting of the salary or any increases for the position of building inspector and lastly, he may not participate or vote as to any matters wherein his official duties as a building inspector are in question. In these instances, he must note his abstention of public record together with the reason for such abstention. Lastly, the propriety of the proposed course of conduct 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 criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as 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 Stephen Yakopec Jr., Esquire September 26, 198C Page 5 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, otylcallo Vincent J. Dopko, General Counsel