Loading...
HomeMy WebLinkAbout95-561 HopkinsE. Harry Hopkins RR 1, Box 349 Falls, PA 18615 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 3, 1995 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. 95 -561 Re: Simultaneous Service, Township Supervisor, County Commissioner Dear Mr. Hopkins: This responds to your letter of April 12, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon a township supervisor from also serving as a county commissioner. Facts: You are currently a township supervisor and are running for county commissioner. You seek advice from the Commission under the Ethics Law and ask whether you can hold both offices simultaneously. Discussion: As a township supervisor, you are a "public official" as that term is defined in the Ethics Law and hence are subject to the provisions of the Ethics Law. 65 P.S. 402. As to whether the Ethics Act would restrict or prohibit a township supervisor from also serving as a county commissioner, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the Public Official and Employees Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of the County Code. If, however, another provision of law somehow impacts on the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler, Opinion 85 -020. Hopkins, E. Harry, 95 -561 May 3, 1995 Page 2 (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: "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 or 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 (c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether Hopkins, E. Harry, 95 -561 May 3, 1995 Page 3 a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the County Code must be reviewed: Incompatible Offices (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. 5402. The County Code does not appear to contain any exceptions to the above provision that is applicable in the instant situation. Therefore, if an individual takes or continues to hold the office of county commissioner and attempts to simultaneously serve as a member of the legislative body of a township, the individual would be doing so contrary to the provisions of the County Code. Therefore, if you were to serve as county commissioner while simultaneously serving as township supervisor, you would be holding a position as a member of the legislative body of a township, which is expressly prohibited by law. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, the State Ethics Commission may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Johnson, Opinion 86 -004. As a result of the foregoing, any salary, benefits or gain which the public official would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or pecuniary benefit that the public official would receive would be a gain other than compensation provided for by law. King, Opinion 85 -025. Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As a township supervisor, you are a "public official" subject to the provisions of the Ethics Law. As a "public official," you may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of township supervisor and county commissioner. 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 Hopkins, E. Harry, 95 -561 May 3, 1995 Page 4 such. 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. erely, Vincent J'JDopko Chief Counsel