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HomeMy WebLinkAbout93-578 SenapeSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 6, 1993 James V. Senape, Jr., Esquire Senape & Associates 612 -614 Main Street P.O. Box 179 Freeland, PA 18224 -0179 93 -578 Re: Simultaneous Service, County Board of Assessment Appeals and Solicitor of School District. Dear Mr. Senape: This responds to your letter of June 22, 1993, 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 member of a county board of assessment appeals from also serving or being employed as solicitor of a local school district within that county. Facts: You currently serve as a Member of the Luzerne County Board of Assessment Appeals. Recently, you were approached regarding the possibility of being named Solicitor of a local school district within Luzerne County. You are concerned with potential Ethics Law violations which may arise as a result of serving in both positions simultaneously. As an example, you use the situation in which a tax appeal involving real estate located within the school district is being heard by the Board of Assessment Appeals. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a Member of the Luzerne County Board of Assessment Appeals, 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 S11.1. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that James V. Senape, Jr., Esquire James V. Senape, Jr., Esquire July 6, 1993 Page 2 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 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 any thing of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public 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 as a Member of the Luzerne County Board of Assessment Appeals and as Solicitor of a local school district. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a Member of the County Assessment Appeal Board and a Solicitor of a school district. 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 James V. Senape, Jr., Esquire July 6, 1993 Page 3 whose interests may be inherently adverse. Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are inherently adverse to each other. Turning to the question of conflict of interest, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/ public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Should a situation arise where the use of authority of public office /employment or confidential information received by holding the above public positions could result in a prohibited private pecuniary benefit, a conflict of interest would arise. For instance, in the example you use, should a matter concerning real estate within the school district come before the Board of Assessment Appeals, a conflict of interest would exist because by voting either in favor or against such matter on the Appeals Board, your employment as Solicitor of the school district could be directly affected. In each instance of a conflict of interest, you would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed with the appropriate person (supervisor or secretary who keeps the minutes). If other situations 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code or the Rules of Professional Conduct. Conclusion: As a Member of the Luzerne County Board of Assessment Appeals, you are 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 County Board of Assessment Appeals Member and school district Solicitor, subject to the restrictions, conditions and qualifications set forth above. 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 James V. Senape, Jr., Esquire July 6, 1993 Page 4 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 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). truly yours Vincent . Dopko, Chief Counsel