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HomeMy WebLinkAbout91-556 HahnMs. Gael W. Hahn Secretary /Treasurer Borough of Schwenksville 140 Main Street Schwenksville, PA 19473 Dear Ms. Hahn: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 8, 1991 91 -556 Re: Conflict, Public Official /Employee, Borough Secretary/ Treasurer, Notary, Fees, Notary Services to Borough, Notary Services to Borough Residents This responds to your letter of May 16, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Borough Secretary /Treasurer who is a licensed Notary Public in providing Notary Public services to the Borough - with or without charge - and to Borough residents submitting documents to the Borough Council which require notarization, with the fee being revenue for the Borough. Facts: As the recently appointed Secretary /Treasurer of the Borough of Schwenksville, Montgomery County, Pennsylvania, you seek the advice of the State Ethics Commission. For several years you have been a licensed Notary Public. You specifically inquire as to whether you may provide the services of Notary Public to the Borough and notarize Borough documents, and if so whether you may charge the Borough a fee for those services. You further inquire as to whether you may provide the services of Notary Public to residents of the Borough who wish to submit documents to the Borough Council which require notarization, and if so, whether the fee collected could be revenue for the Borough. Ms. Gael W. Hahn Page 2 Discussion: As Secretary /Treasurer for the Borough of Schwenksville, Montgomery County, Pennsylvania, you are a public official /employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. 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 in the Ethics Law as follows: 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 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 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 Ms. Gael W. Hahn Page 3 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. Under Section 3(a) of the Ethics Law, it is initially noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the Ethics Law. The Commission does not specifically have the statutory jurisdiction to interpret the Borough Code. If, however, another provision of law such as the provisions of the Borough Code, somehow impact 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; Accord, Confidential Opinion 91 -001 at 4. Although it does not appear that a Secretary /Treasurer of a Borough is required to be a Notary Public, the services of a Notary would be considered as legitimately encompassed by your functions, duties and responsibilities as the Borough Secretary /Treasurer. See, 53 F.S. 546111. However, while it seems clear that you could provide Notary services to the Borough, under the Ethics Law you could only do so free of charge. This is because your Notary services would be within the scope of your duties as Borough Secretary /Treasurer and because you would be performing those services while being compensated as on Borough time, and accessing Borough facilities. Therefore, if you were to charge the Borough a fee for your Notary services, you would be using the authority of your office or employment to obtain a private pecuniary benefit which is prohibited by Section 3(a) of the Ethics Law. (See, O'Pake, Order No. 158, decided under former Ethics Act 170 of 1978, where the Commission clearly expressed disapproval for such conduct.) Turning to your second specific inquiry, you could, within the scope of your duties as Borough Secretary /Treasurer, provide the services of Notary Public to residents of the Borough who wish to submit documents to the Borough Council which require notarization. The fee collected from the Borough residents for your notarial services could be revenue for the Borough because as such, it would not constitute a prohibited private pecuniary benefit. Indeed, if you did not turn the fees over to the Borough as revenue, but kept them for yourself, you would transgress Section 3(a) of the Ethics Law by obtaining a prohibited private pecuniary benefit, for the same reasons set forth above in response to your first specific inquiry. such. Ms. Gael W. Hahn Page 4 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Secretary /Treasurer for the Borough of Schwenksville, Montgomery County, Pennsylvania, you are a public official /employee subject to the provisions of the Ethics Law. In your capacity as Secretary /Treasurer of the Borough and as a Notary Public you may provide the services of Notary Public to the Borough as long as those services are free of charge. You may also provide the services of Notary Public to the residents of the Borough who wish to submit documents to the Borough Council which require notarization, as long as the fee collected is revenue for the Borough. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. 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. Sincerely, Vincent Dopko, Chief Counsel