HomeMy WebLinkAbout90-604 HenrySTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 30, 1990
Mr. Thomas R. Henry 90 -604
118 Rear Fallowfield Ave.
P.O. Box 776
Charleroi, PA 15022
Re: Simultaneous Service, Borough Councilmember and Borough
Part -time Clerk.
Dear Mr. Henry:
This responds to your letter of September 19, 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 borough
councilmember from also serving or being employed as a borough
part -time clerk.
Facts: You are currently a part -time clerk of Charleroi Borough
and are considering either running or being appointed to the
position of councilmember to the borough. You currently work
approximately 31 hours per week with duties consisting of general
clerical, parking ordinance enforcement, summons cards and
citation filing. Your position is appointed and not civil
service. You inquire as to whether a member of the Charleroi
Borough Council could also serve as a paid part -time clerk for
the borough.
Discussion: If elected to borough council, you would become a
"public official" as that term is defined in the Ethics Law and
hence you would be subject to the provisions of the Ethics Law.
Section 3(a) of the Ethics Act provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
Mr. Thomas R. Henry
Page 2
The following terms are defined under the Ethics Law:
Section 2. 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 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 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.
In addition, Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee anything of monetary value and no public
official /employee shall solicit or accept any thing of monetary
value based upon the understanding that official /employee would
be influenced thereby.
In applying the above provisions of the Ethics Law to the
question of simultaneous service, there does not appear to be any
real possibility of a private pecuniary benefit or inherent
conflict arising if you were to serve both as a public
official /employee and as borough part -time clerk. Basically, the
Ethics Law does not state that it is inherently incompatible for
a public official /employee to serve or be employed as borough
part -time clerk. The main prohibition under the Ethics Law and
Opinions of the Ethics Commission is that one may not serve the
interests of two person, groups, or entities whose interests may
be adverse. Smith Opinion, 89 -010. In the situation outlined
Mr. Thomas R. Henry
Page 3
above, you would not be serving entities with interests which are
adverse to each other.
However, if a situation arises where you or the respective
entities you represent develop an adverse interest, then you must
remove yourself from that particular matter and disclose the
nature of your interest in a written memorandum to the
appropriate person (supervisor or secretary who keeps the
minutes). If such a situation would arise, additional advice may
be sought from the Commission.
Although you would not be precluded from simultaneously
serving as borough councilmember and part -time clerk under the
Ethics Act, you should be aware that Act 18 of 1990 has recently
amended Section 1104 of the Borough Code in part as follows:
Unless there is incompatibility in fact,
any elective or appointive officer of the
borough shall be eligible to serve on any
board, commission, bureau or other agency
created by or for the borough, or any borough
office created or authorized by statute and
may accept appointments thereunder, but no
mayor or councilman shall receive
compensation therefor. No elected borough
official of a borough with a population of
3,000 or more may serve as an employee of
that borough...
Since serious questions exist under the Borough Code as to
whether you may simultaneously serve in those two positions
assuming that the population of Charleroi Borough is 3,000 or
more, it is suggested that you contact your private attorney and
seek his advice on the propriety of such service under the
Borough Code.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; 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: If you are elected as a borough councilman, you
would be a "public official" subject to the provisions of the
Ethics Law. As a public official /employee, you may, consistent
with Section 3(a) of the Ethics Law, simultaneously serve in the
positions of Borough Councilmember and Borough part -time clerk.
However, a serious question exists as to whether you may
simultaneously serve in these positions under the Borough Code
and it is suggested that you seek advice from private counsel in
Mr. Thomas R. Henry
Page 4
that regard. Lastly, the propriety of the proposed course of
conduct has only been addressed under the Ethics Act.
Pursuant to Section 7(11), 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
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.
Vincent tiff . Dopko,
Chief Counsel