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HomeMy WebLinkAbout94-636 MartoneLawrence Martone 139 East Tyrone Street Honesdale, PA 18431 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 6, 1994 94 -636 Re: Simultaneous Service, School Director and County Coordinator for Emergency Management. Dear Mr. Martone: This responds to your letter of November 1, 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 school director from also serving or being employed as a county coordinator for emergency management. Facts: As a School Director for the Wayne Highlands School District, you request an advisory from the State Ethics Commission. You state that you have been tentatively tendered an offer to serve as Coordinator for Emergency Management for Wayne County. It is your wish to simultaneously serve as a Wayne Highlands School Director and as the Coordinator for Emergency Management for Wayne County (a part -time position), given that you are now retired. You allege a prior telephone conversation between Superintendent Mr. Daniel J. O'Neill and a staff member of the State Ethics Commission. You characterize that telephone conversation as indicating that the staff member could not find anything in the County or School Codes that would cause a conflict with the Hatch Act, but that advisories were not given telephonically but in writing. Discussion: It must initially be noted, so that there is no misunderstanding, that your characterization of a prior telephone conversation between Mr. O'Neill and a staff member of this office is inaccurate. Staff members of this office do not give advice as to the Hatch Act, which is a federal law and is not within the statutory jurisdiction of this Commission. The particular discussion which you reference focused upon the application of the Martone, Lawrence, 94 -636 December 6, 1994 Page 2 Ethics Law to questions of simultaneous service. Having clarified this matter, your inquiry will now be addressed. As a School Director for Wayne Highlands School District, you are a "public official" 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. 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 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 Martone, Lawrence, 94 -636 December 6, 1994 Page 3 understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. The County Code, the Public School Code, and the pertinent portions of Title 35 which pertain to Emergency Management Coordinators do not appear to contain any incompatibility provisions expressly forbidding your proposed simultaneous service. 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 /public employee in your capacity as a School Director and as Coordinator for Emergency Management for Wayne County. Basically, the Ethics Law does not state that it is inherently incompatible for a public official / employee to simultaneously serve or be employed as a School Director and as a County Coordinator for Emergency Management. 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. 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 herein is the applicability of the Hatch Act. Conclusion: As a School Director for Wayne Highlands School Martone, Lawrence, 94 -636 December 6, 1994 Page 4 such. District, you are a "public official" subject to the provisions of the Ethics Law. As a public official /public employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of School Director for Wayne Highlands School District and as Coordinator for Emergency Management for Wayne County, 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 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 FAS 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. Sincerely, /(A1 Vincent 'tr. Dopko Chief Counsel