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HomeMy WebLinkAbout91-568 PompellaMr. Stephen E. Pompella R.R. 1 Box 37H White Haven, PA 18661 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 20, 1991 91 -568 Re: Simultaneous Service, Borough, Zoning Officer, Constable Dear Mr. Pompella: This responds to your undated letter received July 10, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon a Borough Zoning Officer from also serving as Borough Constable. Facts: Upon the advice of the Solicitor for East Side Borough, you seek the advice of the State Ethics Commission. You have been a resident of the Borough all of your life and have served the Borough in various capacities for the past twenty years. Among the offices /positions you have held are Tax Collector, Councilman, Planning Commission Member, and, most recently, Zoning Officer. In March of 1990, you petitioned the Carbon County Court of Common Pleas to fill the unexpired term of Constable. You are presently a candidate for that position in the November election, running unopposed. Your specific inquiry is whether there would be a conflict of interest between your position as a Borough Zoning Officer and the position of a Constable for the Borough. You note that the population of East Side Borough is 310 with 90 registered voters. You state that the Borough population is apathetic toward local government and that the same few individuals can be counted on for help in directing the affairs of the Borough. You cite as an example the fact that the Mayor also serves as Emergency Management Coordinator. You state your personal belief that the conflict of interest laws should be waived or modified for municipalities with less than 500 persons. You state that you will await the advice of this Commission before making any further decisions on this matter, not wishing to act unlawfully in your zeal to serve your municipality. If Mr. Stephen E. Pompella August 20, 1991 Page 2 there is a conflict of interest between the two positions, you state that you shall submit your letter of resignation from the position of Zoning Officer effective immediately. You have enclosed a copy of a letter from the Borough Solicitor to you, dated July 2, 1991, which letter is incorporated herein by reference. The letter outlines the Solicitor's inquiries on this issue with the Department of Community Affairs, and expresses the Solicitor's opinion that there is statutory authority which has not yet been judicially interpreted, but which would indicate that you could not hold both positions simultaneously. Discussion: As a Zoning Officer for East Side Borough, you are a public official /employee as defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402. It is initially noted that your request for advice may only be addressed from your perspective as the Zoning Officer, because in that position you are subject to the restrictions of Section 3(a) of the Ethics Law. On the other hand, as a Constable, you would be considered a member of the judiciary beyond the jurisdiction of this Commission with regard to conflicts of interest, but subject to regulation by the Supreme Court of Pennsylvania. See, Act 147 of 1990, §2942(b). It is further noted that this Advice is issued strictly and solely with regard to your prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Law makes it clear that an opinion /advice may be given only as to prospective (future) 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 Law violations by a person who is subject to the Ethics Law. To the extent that you are already simultaneously serving in both capacities as a Borough Zoning Officer and a Borough Constable, such would constitute past conduct which will not be addressed in this Advice. As to whether the Ethics Law would restrict or prohibit you with regard to your prospective conduct of simultaneously serving as the Borough Zoning Officer and as a Constable for the Borough, it is further noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials /employees within the purview of the Public Official and Employee Ethics Law. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of the Pennsylvania Municipalities Planning Code, 53 P.S. 510101 et se ., or Act 147 of 1990 relating to the powers Mr. Stephen E. Pompella August 20, 1991 Page 3 and duties of Constables. 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 Biciler Opinion 85 -020. 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 Mr. Stephen E. Pompella August 20, 1991 Page 4 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 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 relevant statutory provisions, in this case, the Pennsylvania Municipalities Planning Code and the provisions of Act 147 of 1990 must be reviewed. A review of these statutes results in the conclusion that you may not simultaneously serve as Borough Zoning Officer and Borough Constable. The Pennsylvania Municipalities Planning Code provides, in pertinent part: "For the administration of a zoning ordinance, a zoning officer, who shall not hold any elective office in the municipality, shall be appointed. . ." 53 P.S. 510614 (Emphasis added). This provision of the Pennsylvania Municipalities Planning Code appears to clearly prohibit a Zoning Officer from holding any elective office in the municipality and it does not appear to contain any exceptions to that restriction which would be applicable in the instant situation. The office of Constable is an elective office. Act 147 of 1990 defines the term "Constable" as follows: "'Constable.' Any person holding the elective office of constable, whether by election or by appointment to fill a vacancy in such elective office." Act 147 of 1990, 52941. Thus, it appears that a Borough Zoning Officer may not simultaneously hold the elective office of Borough Constable. Therefore, if you were to take or continue to hold office as Borough Constable and attempt to simultaneously serve in both of these positions, you would be doing so contrary to the provisions of the Pennsylvania Municipalities Planning Code. Although only the Pennsylvania General Assembly has the inherent authority to declare offices /positions 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 the public official /employee would receive in that position would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or Mr. Stephen E. Pompella August 20, 1991 Page 5 pecuniary benefit that the public official /employee would receive would be a gain other than compensation provided for by law. King, Opinion 85 -025. 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 Zoning Officer for East Side Borough, you are a public official /employee subject to the provisions of the Ethics Law. As a public official /employee you may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of Borough Zoning Officer and Borough Constable. Lastly, the propriety of the proposed course of 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. 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 §2.12. ncerely, Vincent . Dopko, Chief Counsel