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HomeMy WebLinkAbout19-500 RiglerPHONE: 717 - 783 -1610 TOLL FREE: 1- 800 - 932 -0936 To the Requester: Ms, Helen R. Rigler Dear Ms. Rigler: ADVICE OF COUNSEL January 28, 2019 FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 19 -500 This responds to your letters dated November 28, 2018, and December 10, 2018, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Na—G-S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as an Accounts Payable /General Ledger Specialist for Wayne County ( "County "), Pennsylvania, with regard to simultaneously serving as a County Auditor. Facts: You request an advisory from the Commission based upon the following submitted facts. You are currently employed as an Accounts Payable/General Ledger Specialist for the County. You have submitted a copy of a position description (the "Position Description ") for your position with the County, which document is Incorporated herein by reference. You would like to seek election as a County Auditor in 2019. You seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to serving as a County Auditor while employed as an Accounts Payable /General Ledger Specialist for the County. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Ri ler, 19 -500 -Ja uary 28, 2019 Page 2 If you would be elected as a County Auditor, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. See, Pa.C.S. § 1102. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows. § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Count. Art. 6, § 2. Although the Commission does not have the express statutory jurisdiction to interpret such other laws, it may review them to determine whether a conflict of interest exists under the Ethics Act based upon a statutory incompatibility. Corcoran, Opinion 08 -003. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. See, Corcoran, supra; Confidential Opinion 03- 003. In this case, the County Code, on its ace, expressly prohibits a person holding the office of county auditor from holding employment with the county. § 702. Eligibility Ruler, 19 =500 January 28, 2019 Page 3 (b) No person holding the office of county auditor shall at the same time hold any office or employment for the county or for any municipal authority of which the county is a member.... 16 P.S. § 702(b). Because the above provision of the County Code expressly prohibits simultaneous service as a County Auditor and a County employee, the compensation or other financial gain or pecuniary benefit that you would receive as a result of simultaneously holding the aforesaid positions would be a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. Therefore, you are advised that pursuant to Section 1103(a) of the Ethics Act, you may not simultaneously serve as a County Auditor and a County employee (Accounts PayabT7General Ledger Specialist). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion; If you would be elected as a County Auditor for Wayne County ("County"), Pennsylvania, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et se Based upon the submitted facts, you are advised that pursuant to Section 1103 a(a f the Ethics Act, you may not simultaneously serve as a County Auditor and a County employee (Accounts PayabTe7General Ledger Specialist). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writingg and must be actuall received at the Commission within thirty (30) days of the date of this Advice pursuant to 59 Pa. Code § 73.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sinc rely, All—, �a4l U4 Robin M. Hittie Chief Counsel