Loading...
HomeMy WebLinkAbout94-646 RayCynthia S. Ray, Esquire Administrative Assistant James J. Rhoades, 29th District Senate of Pennsylvania 214 Carbon Street Weatherly, PA 18255 Dear Ms. Ray: 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 12, 1994 94 -646 Re: Simultaneous Service, County Register of Wills and Administrative Assistant to State Senator. This responds to your letter of November 30, 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 County Register of Wills from also serving or being employed as an Administrative Assistant to a State Senator. Facts: Noting a prior telephone conversation with a member of Commission staff, you request an advisory from the State Ethics Commission. You are a part -time Administrative Assistant to Senator James J. Rhoades. You work ten hours per week for the Senator, and many of those hours are spent covering evening meetings for the Senator. You are an attorney and you have a law office. All of your equipment and phones are used for Senate business. Next Spring, you plan to run for the office of Register of Wills of Carbon County. You are inquiring as to any ethical conflicts which would prevent you from holding both positions simultaneously, specifically the positions of Register of Wills for Carbon County and Administrative Assistant to Senator James J. Rhoades. You are very aware that while "wearing the hat" of Register of Wills you would not utilize the County Office for anything but the County business and vice versa. You state that you checked the County Code and found no statutory conflict between the two positions you wish to hold simultaneously. Discussion: In order to answer your inquiry, several points must initially be noted. Ray, Cynthia S., Esquire, 94 -646 December 12, 1994 Page 2 First, since you have indicated that to some extent, you fill in for Senator Rhoades at various meetings, this Advice shall assume that in your capacity as the Senator's Administrative Assistant, you are a "public employee" subject to the Ethics Law. Second, in that you have mentioned your private law practice and the fact that your equipment and phones are used for Senate business, it is noted that government facilities, equipment, man hours and supplies may only be used for government purposes. Pancoe, Opinion 89 -011; Freind, Orders Nos. 800 and 800 -R. Third, since your inquiry is limited to the issue of simultaneous service, this Advice shall be limited to addressing the narrow question you have raised. If elected Register of Wills for Carbon County, Pennsylvania, 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. §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. Ray, Cynthia S., Esquire, 94 -646 December 12, 1994 Page 3 "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. Turning to your specific inquiry, it is noted that the County Code does not appear to include any incompatibility provisions expressly prohibiting your proposed simultaneous service as a County Register of Wills and an Administrative Assistant to a State Senator. 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 arieing if you were to simultaneously serve in the aforesaid positions. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to simultaneously serve or be employed in such positions. 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. Ray, Cynthia S., Esquire, 94 -646 December 12, 1994 Page 4 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: Under the facts which you have submitted, you are a "public employee" subject to the Ethics Law in your capacity as an Administrative Assistant to Senator Rhoades. If elected Register of Wills for Carbon County, Pennsylvania, you will become a "public official" 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 Register of Wills for Carbon County and Administrative Assistant to Senator James Rhoades, 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 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). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Sincerely, vv Vincent ". Dopko Chief Counsel