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HomeMy WebLinkAbout94-620 HelfrichCarson Helfrich HC Box 59 Paupack, PA 18451 Dear Mr. Helfrich: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 5, 1994 Section 3(a) of the Ethics Law provides: 94 -620 Re: Simultaneous Service, County Commissioner and Township Manager. This responds to your letter of September 22, 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 township manager from also serving as a county commissioner. Facts: You are considering running for the office of County Commissioner in Pike County. You are currently employed as a part - time administrator in Palmyra Township, Pike County. You operate a municipal planning consulting business with several local municipal clients in Pike County and the Pike County Public Library. You prepared a comprehensive for Pike County in 1990- 1991. You were employed as a Pike County Planning Director from 1977 to 1984. You seek an advisory under the Ethics Law as to whether you must terminate employment with Palmyra Township during your campaign, whether you must terminate your consulting services to the Pike County local municipalities and the Library during the campaign, whether you would have to terminate employment with Palmyra Township if elected and whether you would have to terminate your consulting services to the Pike County local municipalities and the Library if elected. Discussion: As an administrator for Palmyra Township, you are a "public employee" 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 §11.1. Helfrich, Carson, 94 -620 October 5, 1994 Page 2 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 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 /employee and as County Commissioner. Basically, the Ethics Law does not state that it is inherently incompatible for a public official/ employee to serve or be employed as County Helfrich, Carson, 94 -620 October 5, 1994 Page 3 Commissioner. 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, 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. Having provided a general background, the four questions which you have posed will be addressed under the Ethics Law. Regarding your employment with Palmyra Township and your consulting services to Pike County local municipalities and the Library during the campaign, the Ethics Law does not impose any requirement upon you to terminate your employment or consulting services during your campaign. As a candidate for office you would be required to file the Financial Interests Statement. In addition, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business or campaign activities. A public official /employee may not during government working hours, solicit or promote such business or campaign activity. Pancoe, Opinion 89 -011. Regarding your third and fourth inquires as to whether you would have to terminate employment with Palmyra Township and terminate your consulting services with the Pike County local municipalities and Library if elected, the Ethics Law does not contain any prohibition as to outside employment. However, if your employer or any of your clients have matters before your governmental body, you would have a conflict, could not participate and must publicly announce the conflict or advise your supervisor of such conflict as well as file a written memorandum with the municipal secretary or supervisor as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. Helfrich, Carson, 94 -620 October 5, 1994 Page 4 Parenthetically, although this Commission does not have jurisdiction to interpret or enforce the County Code, Section 1 of the County Code provides in part: (a) 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. §402(a). 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 Code, the Second Class Township Code or any local ordinance or local ethics code. Conclusion: As a Manager for Palmyra Township, you are a "public employee" 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 Township Manager and County Commissioner, and engage in outside business activities 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 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 Helfrich, Carson, 94 -620 October 5, 1994 Page 5 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 PAZ transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. erely, Vincent Dop Chief Counsel