HomeMy WebLinkAbout93-585 FalcioneOrlando Falcione
1005 Marion Drive
Coraopolis, PA 15108
Dear Mr. Falcione:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 27, 1993
93 -585
Re: Simultaneous Service, Mayor and School District
Superintendent.
This responds to your letter of July 12, 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 Borough Mayor from also
serving or being employed as a School Superintendent for a School
District within the Borough.
Facts: You currently serve as Mayor of the Borough of Coraopolis.
Your full -time employment is in the field of education. You state
that you may be offered the position of School Superintendent for
the Cornell School District which is located in Coraopolis. Based
on the above, you request advice from the State Ethics Commission
regarding whether any conflict or legal incompatibility exists in
holding these two positions simultaneously.
Discussion: As Mayor for the Borough of Coraopolis, you are a
"public official" as that term is defined in the Ethics Law and
hence you subject to the provisions of the Ethics Law. 65 P.S.
§402; 51 Pa. Code §11.1.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
July 27, 1993
Page 2
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
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 both as a public official
(mayor) and as a public employee (school superintendent).
Basically, the Ethics Law does not state that it is inherently
incompatible for a public official/ employee to serve or be
employed as a school superintendent. 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 inherently adverse. Smith Opinion, 89 -010.
July 27, 1993
Page 3
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. 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 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 Law has not been considered in that they do not
involve an interpretation of the Ethics Law.
Conclusion: As Mayor for the Borough of Coraopolis, 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 Mayor
and School Superintendent for the Cornell School District within
the Borough of Coraopolis, 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
on the Advice given.
such.
This letter is a public record and will be made available as
July 27, 1993
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 writincr and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 513.2(h).
ry truly yours,
Vincent J`: Dopko,
Chief Counsel