Loading...
HomeMy WebLinkAbout92-511Mr. Samuel F. Meisenhelder Meisenhelder and Associates 145 East Market Street York, PA 17401 -1221 Dear Mr. Meisenhelder: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 1 1470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1810 ADVICE OF COUNSEL January 21, 1992 92 -511 Re: Simultaneous Service, Borough Solicitor and County Solicitor. This responds to your letter of December 4, 1991, 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 solicitor from also serving or being employed as a county solicitor. Facts: Noting that you have served as Solicitor to the Borough of Manchester, York County, Pennsylvania for approximately 20 years, you, seek the advice of the State Ethics Commission regarding your recent appointment as the County Solicitor by the newly- elected Commissioners of York County, to be installed, with them, on January 6, 1992. The York County Solicitor position involves an annual salary, while the Borough of Manchester Solicitor position involves payment on an hourly basis. You state that you would like to continue to serve as Solicitor to the Borough of Manchester, and that you do not perceive any conflict of interest. Nevertheless, you seek an expedited advisory opinion from this Commission as to whether there would be a conflict of interest as a result of your holding these two positions. You note that you would like to give as much notice as possible to the Borough if you must withdraw from that position. Discussion: As the Solicitor for the Borough of Manchester, York County, Pennsylvania you are a "public employee" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code S1.1. Mr. Samuel F. Meisenhelder January 21, 1992 Page 2 aeg also, Spataro, Opinion 89 -009 at 4; Maunus v. Com., State Ethics Com., 544 A.2d 1324, 1326 (1988). 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. 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 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 anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Mr. Samuel F. Meisenhelder January 21, 1992 Page 3 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 as a public employee in both capacities as the Solicitor for the Borough of Manchester and as the Solicitor for York County. Basically, the Ethics Law does not state that it is inherently incompatible for a borough solicitor as a public employee to simultaneously serve or be employed as a county solicitor. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined 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 publicly disclose the nature of your interest, both orally and in a written memorandum filed with the secretary who keeps the minutes. If such a situation would arise, additional advice may be sought from the Commission. 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. Specifically not'addressed herein is the applicability of the Rules of Professional Conduct. Conclusion: As the Solicitor for the Borough of Manchester, you are a "public employee" subject to the previsions 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 Solicitor for the Borough of Manchester and Solicitor for York County. 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. This letter is a public record and will be made available as such. Mr. Samuel F. Meisenhelder January 21, 1992 Page 4 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 S2.12. truly yours, Vincent . Dopko, Chief Counsel