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HomeMy WebLinkAbout94-506 WhiteHarry Faber White, II, Jorden and White 966 South Main Street Meadville, PA 16335 Dear Mr. White: 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 12, 1994 Esquire Re: Simultaneous Service, Constable and Township Supervisor. 94-506 This responds to your letter of December 9, 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 township supervisor from also serving as a constable. Facts: As Solicitor for Venango Township, Erie County, you have been asked by Richard Bessetti, a Supervisor -elect of Venango Township, to obtain an opinion from the State Ethics Commission. You state that Bessetti has served as a Constable, elected by Venango Township, for almost eighteen years. His duties as a Constable involve working with the court system in Erie County. During the past eighteen years, Bessetti has not done any work for Venango Township directly. Bessetti ran for and was elected to the position of Supervisor during in November, 1993. He is to take office on January 3, 1994. A question has arisen as to whether he may simultaneously serve as a Second Class Township Supervisor and a Constable. You refer to Section 65410(B) of the Second Class Township Code which states that "no supervisor shall at the same time hold any other elective or appointive township office or position other than township roadmaster or secretary /treasurer." You also state that Section 65741 of the Second Class Township Code provides that any proceedings for the violation of township ordinances and the collection of fines and penalties imposed thereby be directed to and served by a constable of the township. Harry Faber White, II, Esquire January 12, 1994 Page 2 You are aware that the State taken the position that although constable is a "state official" official ". Association of Constables has elected by the township, a as opposed to a "township Additionally, you feel that Lower Saucon Township v. Rasich, 4 D. & C.3d 264, may be relevant. In that case, the Court held that a councilman or supervisor could not be a police officer in a second class township. Additionally, it is clear that township supervisors cannot also be local civil defense directors. (1976 Opinion of the Attorney General, No. 19). Finally, you state that an older section of the Constable Law does provide that a constable "can arrest all persons for disorderly conduct, breach of peace, or upon sight of the commission of any unlawful act imperiling public safety, and for all ordinance violations of townships ". You state that both the Venango Township Board of Supervisors and Bessetti realize that if Bessetti can simultaneously serve as both Supervisor and Constable, that he would not be allowed to act as Constable enforcing any Township ordinances while he was also a Supervisor. Bessetti has made arrangements to secure the services of another Constable to enforce any Township ordinances if the need arises. Based upon the above, you request an advisory as to whether Bessetti may simultaneously serve as Constable and Township Supervisor. Discussion: As a Member of the Board of Supervisors for Venango Township, Erie County, Richard Bessetti is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. 5402; 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 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 Harry Faber White, II, Esquire January 12, 1994 Page 3 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 Bessetti were to serve both as a Township Supervisor and as a Constable. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a Constable. 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. In the situation outlined above, Bessetti would not be serving entities with interests which are inherently adverse to each other. See, Confidential Opinion, 92 -008 (Simultaneous service as borough council member and constable from the same borough permitted under the Ethics Law). 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 Harry Faber White, II, Esquire January 12, 1994 Page 4 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, Bessetti 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 a Member of the Board of Supervisors for Venango Township, Erie County, Richard Bessetti is a "public official" subject to the provisions of the Ethics Law. As a public official/ employee, he may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Township Supervisor and Constable, 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. 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 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 Harry Faber White, II, Esquire January 12, 1994 Page 5 Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). cerely, I � Vincent J. opko Chief Counsel