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HomeMy WebLinkAbout88-645 SitoskiMr. Fran Sitoski 1615 7th Street Bethlehem, PA 18017 Dear Mr. Sitoski: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 10, 1988 88 - 645 Re: Conflict of Interest, Public Official, Township Supervisor, Circulation of a Support Petition This responds to your letter of September 23, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibitions upon a first class township commissioner from circulating a petition to individuals for their support. Facts: After reciting a telephonic communication to the Commission and referencing media attention to a certain situation in Bethlehem Township, you request an opinion from the Ethics Act concerning a petition that you are circulating in Bethlehem Township. You state that you are a commissioner of Bethlehem Township at a salary of $2,600.00 a year and that you, as a commissioner, do not have an office or regular working hours. You recite that your responsibility is to attend public monthly meetings, special meetings, workshops, as well as answering complaints and satisfying requests. You state that you are not currently running for office or campaigning but are circulating the support petition for your own personal use and have not shown it or given it to any one. You recite that you did ask the police chief, while he was on duty, to sign your petition not as an employee but as a registered voter in the second ward of the township. You state that you did not go to the municipal building for that sole purpose as is evidenced by the fact that there are 47 other township employees who were not asked to sign the petition. You advise that the police chief did sign the petition "because he felt the citizens group were convicting-- - [you] without a fair trial." You state that the exact wording of the petition is as follows: Mr. Fran Sitoski November 10, 1988 Page 2 "We the undersigned, registered voters of Ward 2 Bethlehem Twp., do hereby support Fran Sitoski as Commissioner of Bethlehem Twp. and give him our vote of confidence." You conclude by requesting advice as to whether such conduct is a violation of the Ethics Act when you asked the police chief to sign the petition while he was on the job asking for his support and vote of confidence. Discussion: As a Commissioner for Bethlehem Township, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code Section 1.1. As such you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Preliminary, the authority of the Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Act is limited by statute, (65 P.S. 407(9)(i) and (ii)), to those persons who request it relative to their duties. Thus, the Commission cannot issue an opinion /advice to a third party concerning the duties of some other person under the Ethics Act. Further, a reading of Sections 7(9)(i) and (ii) of the Ethics Act makes it clear that an opinion /advice may be given to a person as to a prospective course of conduct. If the activity, in question, has already occurred,the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. Therefore, for purposes of this advice, your action of contacting the police chief to sign the petition while he was on duty is past action and will not be addressed in this advice since the advice /opinion mechanism is advisory as to only future prospective conduct. 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 Mr. Fran Sitoski November 10, 1988 Page 3 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. In the instant situation, the issue to be addressed is whether you, as a first class township commissioner, may circulate this petition seeking support from registered voters. The State Ethics Commission has determined that a public official /employee must separate his activity as a public official on behalf of the public from his actions which would inure to his own personal or private interest, that is, a public official may not use public office or any of the trappings thereof in furtherance of his private interests or pursuits. See Fee, Advice, 86 -542. A typical example of the foregoing is the situation where a public official is seeking re- election. In that regard, the Commission has noted that the public official may not use his public office or equipment, supplies, postage, meters, stationary equipment, staff in furtherance of his re- election campaign. See Fee, Advice supra. Another example of the foregoing is that a public official /employee may not use public office to further his private business interests. See Dorrance, Order 456. The foregoing basically means that a public official must act only in the public interest, 65 P.S. §401; any activity which would be private or personal in nature must not be associated or connected with public office. Mr. Fran Sitoski November 10, 1988 Page 4 Applying the above to your situation, the Ethics Act would not preclude you as a private individual from circulating the petition on your own personal time. You could not use the stationary or postage from your governmental body; you could not use the phones of your governmental body in contacting people to sign your petition and you could not use the equipment or personnel to type or circulate the petition or seek support for the petition. Thus, the circulation of the petition would have to be done in your capacity as a private citizen on your own time and at your own expense and you could not use your public office or the position or status of that office as a means of eliciting signatures in support of your petition. As previously noted, the propriety of obtaining the signature of the police chief on your petition may not be addressed since such is past action. 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 of Bethlehem Township, you are a public official subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act you may not use public office or personnel, equipment, supplies, or postage in preparing, circulating or soliciting support from registered voters to sign your support petition; such activity may only be done on your personal time and at your onw private expense. Lastly, the propriety of the proposed 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. 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 Mr. Fran Sitoski November 10, 1988 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 52.12. ncerely, Vincent J. Dopko, General Counsel