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HomeMy WebLinkAbout94-563 Cherry7 94 -563 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 22, 1994 The Honorable John F. Cherry Dauphin County District Attorney Harrisburg, PA 17105 -1109 Re: Simultaneous Service, Member of Borough Council and Senior Deputy District Attorney. Dear Mr. Cherry: This responds to your letter of March 21, 1994, 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 President of Borough Council from also serving or being employed as a Senior Deputy District Attorney. Facts: Recently, you have had discussions with Attorney Michael Rozman concerning the possibility of his filing a position as a Senior Deputy District Attorney in the Dauphin County District Attorney's Office. Mr. Rozman had several years experience as a Deputy District Attorney prior to entering the private practice of law. Mr. Rozman also serves as Council President of the Borough of Steelton, Dauphin County, Pennsylvania. He receives $2,000.00 per year for his duties. In that your office desires to avoid any appearance of impropriety or conflict with regard to hiring Mr. Rozman as a Senior Deputy District Attorney while he continues to maintain his position as Borough Council President, you have requested that the State Ethics Commission provide your office with a written advisory opinion as to whether a conflict would exist if Mr. Rozman maintains his position on Borough Council while being employed on the staff of the Dauphin County District Attorney's Office. Pursuant to a telephone conference with Assistant Counsel on April 14, 1994, you confirmed that Mr. Rozman has authorized you to make this request on his behalf. Discussion: As a President of Borough Council for the Borough of Steelton, Mr. Rozman is a "public official" as that term is defined Cherry, The Honorable John F., 94 -563 April 22, 1994 Page 2 in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. As a Senior Deputy District Attorney, Mr. Rozman would become a public employee as that term is defined by the Ethics Law and would be subject to the provisions of the Ethics Law in that position as well. 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 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 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. Cherry, The Honorable John F., 94 -563 April 22, 1994 Page 3 Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because, a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the Cherry, The Honorable John F. 14 -563 -- April 22, 1994 Page 4 question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if Mr. Rozman were to serve both as a public official /employee and as Senior Deputy District Attorney. Basically, the Ethics Law does not state that it is inherently incompatible fora public official /employee to serve or be employed as a Senior Deputy District Attorney. 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, Mr. Rozman 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, he 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. Parenthetically, it is noted that the County Code provides in part: No district attorney shall be eligible to a seat in the Legislature or to any other office under the laws and Constitution of the Commonwealth, excepting an office or commission in the militia of the Commonwealth, during his continuance in office. 16 P.S. 51401(f), 16 P.S. 54401(c), 65 P.S. 57. In all cases where more than one assistant district attorney is appointed, the district attorney shall designate one of such assistants as his first assistant. Such first assistant or the assistant district attorney where only one is appointed shall, in the absence of the district attorney from the jurisdiction or during his disability to perform the duties of his office through sickness or other cause, be vested with all the duties, Cherry, The Honorable John F..,.,. 94 -563 April 22, 1994 Page 5 powers and privileges given by law to the district attorney, and generally, at such time, be empowered to do and perform all things in connection with his office which the district attorney may by law be entitled to do or perform. In case of any such incapacity of the district attorney-or his first assistant, or both, any or all such duties, powers and privileges may be done by such other assistant district attorneys, if any, as may be designated by the district attorney. 16 P.S. §1421 No elected county officer or county solicitor shall, at the same time, serve as a member of the legislative body-of any city, borough, town or township of any class, nor as treasurer or tax collector of any city, borough, incorporated town or township, nor as school director of any school district, nor as a member of any board of health. 16 P.S. 5402(a), 65 P.S. S14. However, since it is not within the jurisdiction of the Ethics Commission to interpret the County Code, it is recommended that Mr. Rozman seek the advice of private counsel as to applicability, if any, of that. 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 is the applicability of the County and Borough Code. Conclusion: As President of Borough Council for the Borough of Steelton, Mr. Michael Rozman is a "public official" subject to the provisions of the Ethics Law. As a Senior Deputy District Attorney, he would become a "public employee" subject to the provisions of the Ethics Law in that position also. As a public official / employee, he may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Borough Council President and Senior Deputy District Attorney, 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 Cherry, The Honorable John F ;8�4 April 22, 1994 Page 6 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 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, incentVJ . Dopko Chief Counsel