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Home My WebLink About93-626 LenziDear Mr. Lenzi: tit STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG. PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 30, 1993 93-626 Gary Lenzi 77 Craven Drive Charleroi, PA 15022 Re: Simultaneous Service, Township Supervisor, Part -time Township Police Officer. This responds to your letter of November 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 restriction upon a second class township supervisor from also serving as part -time township police officer. Facts: In 1992, you were elected a Pennsylvania State Constable in Carroll Township. Later that same year, you became a part -time police officer for Carroll Township. You were recently elected to the position of Carroll Township Supervisor and will take officer in January, 1994. Carroll Township is a second class township. You state that you would like to continue working as a police officer on a part -time basis (3 to 4 times a month) after you take office as a Supervisor. You question whether, under the Ethics Law, it is permissible to serve as a Township Supervisor and part - time Township police officer. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a Supervisor for Carroll Township, you will become a "public official" as that term is defined in the Ethics Law and hence you will be subject to the provisions of the Ethics Law. 65 P.S. S402. As to whether the Ethics Act would restrict or prohibit a Township Supervisor from also serving as part -time police officer, 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 Employees Ethics Act. The Commission does not specifically have the Gary Lenzi December 30, 1993 Page 2 statutory jurisdiction to interpret the provisions of Second Class Township Code. 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 Bigler, 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 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 has or Gary Lenzi December 30, 1993 Page 3 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 Second Class Township Code must be reviewed: 53 P.S. S65410. b) Except as provided in section 514, no supervisor shall at the same time hold any other elective or appointive township office or position other than township roadmaster or secretary- treasurer. . . . The Second Class Township Code does not appear to contain any exceptions to the above provision that is applicable in the instant situation. Therefore, if you take office as a Carroll Township Supervisor and attempt to simultaneously serve in both positions of Township Supervisor and part -time Township police officer, you would be doing so contrary to the provisions of the Second Class Township Code. Further, if you were to serve as Supervisor while simultaneously serving as a police officer, you would be holding the position of police officer which is expressly prohibited by law. Although only the Pennsylvania General Assembly has the inherent authority to declare offices 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 you would receive would be a private pecuniary benefit not authorized in law in light of the foregoing incompatibility provision. It is further noted that this issue of simultaneous service was addressed in the Pennsylvania Township News. In response to a question regarding township supervisors holding other positions within the township, it was noted that there are a number of offices and positions incompatible with the office of supervisor, including police officer for the same township. Pennsylvania Township News, June, 1987, page 22. Lastly, it must be noted that the propriety of the proposed Gary Lenzi December 30, 1993 Page 4 such. course of conduct has only been addressed under the Ethics Law. Conclusion: As a Supervisor for the Second Class Township of Carroll, you will become a "public official" subject to the provisions of the Ethics Law. As a public official you may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of Township Supervisor and part -time police officer. 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. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). TC erely, 4 Vincent J. •opko Chief Counsel