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HomeMy WebLinkAbout92-507Steven Kehler 201 North Lynbrook Drive York, PA 17402 Dear Mr. Kehler: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 15, 1992 92 -507 Re: Simultaneous Service, Borough Secretary /Treasurer and School ' Director This responds to your letter of November 18, 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 you as the appointed Borough Secretary /Treasurer for Mount Wolf Borough from also serving as a School Director for Central School District in York County. Facts: As the appointed Secretary /Treasurer of Mount Wolf Borough, York County, Pennsylvania and having been elected School Director of Central School District, York County, you seek the advice of the State Ethics Commission as to whether these positions would be incompatible offices. You note that Central School District does not include Mount Wolf Borough. You seek an expeditious ruling on your inquiry because you are to be sworn into office as a School Director in December. Discussion: As the Secretary /Treasurer for Mount Wolf Borough, 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; 51 Pa. Code S1.1. Furthermore, if you were to enter office as a School Director for Central School District, you would also in that capacity be a "public official" as defined in the Ethics Law and thus, in that capacity as well, you would be subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code S1.1. As to whether the Ethics Act would restrict or prohibit you as Secretary /Treasurer of Mount Wolf Borough from also serving as Mr. Steven Kehler January 15, 1992 Page 2 a School Director for Central School District, 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 Employee Ethics 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 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 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 (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 anything 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 Mr. Steven Kehler January 15, 1992 Page 3 has or will be any transgression thereof but merely to provide a complete response to the question presented. The Commission has determined that 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 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 enactment(s) must be reviewed, In this case, it is Section 3 -322 of the School Code which is applicable and which provides in pertinent part: S 3 -322. Eligibility; incompatible offices 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 (Emphasis added). The above provision of the School Code states unambiguously that a borough treasurer shall not be eligible as a school director in this Commonwealth. Mr. Steven Kehler January 15, 1992 Page 4 However, your inquiry with this Commission may only be addressed within the narrow parameters of Section 3(a) of the Ethics Law, which specifically requires the element of a private pecuniary benefit to establish a conflict of interest. The office of school director is an unpaid position. It would appear that the Ethics Law itself would not preclude your simultaneous service in the above positions. Lastly, it must be emphasized that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. It is strongly recommended that you seek the advice of legal counsel as to whether your proposed simultaneous service would be incompatible within the parameters of the School Code, and specifically, Section 3 -322 set forth above. Conclusion: As the Secretary /Treasurer for Mount Wolf Borough, you are a "public official" subject to the provisions of the Ethics Law. Furthermore, if you would enter office as a School Director for Central School District, York County, you would also in that capacity be a "public official" subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit you from simultaneously serving in the positions of Borough Secretary /Treasurer and School Director. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. It is strongly recommended that you seek the advice of legal counsel as to any incompatibility as to your proposed simultaneous service within the parameters of the School Code. 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 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 Mr. Steven Mohler January 15, 1992 Page 5 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 J: Dopko Chief Counsel