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Home My WebLink About90-540 MedvetzMr. Martin Medvetz R.D. #3, Box 323 Homer City, PA 15748 Dear Mr. Medvetz: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 11, 1990 Re: Simultaneous Service, Chief Tax Assessor, School Director. This responds to your letter of March 6, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a School Director from also serving as Chief Tax Assessor. Facts: On February 1, 1990 you were appointed Chief Tax Assessor for Indiana County. You also serve as a member of the Board of Directors of the Homer - Center School District. After noting that your position with the county as Chief Tax Assessor was made by an appointment and not as a result of an election, you conclude by requesting advice from this Commission concerning your eligibility to hold both positions. Discussion: As a School Director for Homer - Center School District, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 402. As to whether the Ethics Act would restrict or prohibit a School Director from also serving as Chief Tax Assessor, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the Public Official and Employees Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of the Public School Code. If, however, another provision of law somehow impacts on the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler, Opinion 85 -020. 90 -540 Mr. Martin Medvetz Page 2 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: "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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and (c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular Mr. Martin Medvetz Page 3 benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the Public School Code must be reviewed: Any citizen of this Commonwealth, having . a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of mayor, chief burgess, county commissioner, district attorney, city, borough, or township treasurer, member of council in any municipality, township commissioner, township supervisor, tax collector, assessor, assistant assessor, any comptroller, auditor, constable, executive director or assistant executive director of an intermediate unit, supervisor, principal, teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth. 24 P.S. S3 -322. The Public School Code does not appear to contain any exception to the above provision that is applicable in the instant situation. Therefore, if you take or continue to hold office and attempt to simultaneously serve in both of these positions, you would be doing so contrary to the provisions of Public School Code. Further, if you were to serve as School Director while simultaneously serving as Chief Tax Assessor, you would be holding the position of assessor which is expressly prohibited by law. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, the State Ethics Commission may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Johnson, Opinion 86 -004. As a result of the foregoing, any salary, benefits or gain which you would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or pecuniary benefit that you would receive would be a gain other Mr. Martin Medvetz Page 4 than compensation provided for by law. King, Opinion 85 -025. Consequently, you may not under the Ethics Law simultaneously serve in these two positions. Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As a School Director for Homer - Center School District, you are a "public official" subject to the provisions of the Ethics Law. As a public official you may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of School Director and Chief Tax Assessor. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. 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 Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, �fl Vincent 1. Dopko, Chief Counsel