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HomeMy WebLinkAbout96-524 SeamanJerry W. Seaman McGuffey School Director Box 161 Claysville, PA 15323 Dear Mr. Seaman: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 4, 1996 Re: Simultaneous Service, Township Auditor and School Director. 96 -524 This responds to your letter of February 9, 1996, 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 Auditor from also serving or being employed as a School Director. Facts: You are currently serving the dual elected positions of Township Auditor and School Director for McGuffey School. You state in your letter that you feel there is no conflict of interest in that you do not audit the school's records. You further state that the Second Class Township Code does not prohibit such simultaneous service but the School Code does. You also state that you know of a state auditor who audits the school's books and sits on two school boards. You are inquiring as to whether there is a restriction under the Ethics Law as to your serving in these two positions. Discussion: As either a Township Auditor or School Director, 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 § 1 1.1. As to whether the Ethics Act would restrict or prohibit you from serving in both positions, 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 School 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 Seaman, 96 -524 March 4, 1996 Page 2 Commission may be required to interpret such provisions of law. See Bigler, Opinion 85 -020. 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 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 if you were to serve in both public positions. Basically, the Ethics Law does not state that it is a conflict for you as a public official/ employee to serve in the positions of auditor and school director. 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. However, the Commission has determined if a particular statutory enactment prohibits an official from receiving a particular benefit, then that official's receipt of Seaman, 96 -524 March 4, 1996 Page 3 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 a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the School Code and the Incompatible Offices Statute must be reviewed: §6. Office of constable and township or borough auditor No person hereafter elected shall be capable of holding and exercising the office of school director, constable, path- master or commissioner of roads, and that of township or borough auditor 65 Pa.C.S. §6 §3 -322. Eligibility; incompatible offices Any citizen of this Commonwealth, having a good moral character, being eighteen (18) years of age or upwards, and having been a resident of the district for at least one (1) year prior to the date of his election or appointment, shall be eligible to the office of school director therein: Provided, That any person holding any office or position of profit under the government of any city of the first class, or the office of mayor, chief burgess, county commissioner, district attorney, city borough, or township treasurer, member of council in any municipality, township commissioner, township supervisor, tax collector, assessor, assistant assessor, any comptroller, auditor, constable, executive director or assistant executive director of an intermediate unit, supervisor, principal, teacher, or employe of any school district, shall not be eligible as a school director in this Commonwealth. 24 P.S. §3-322. The above quoted statutes do not appear to contain any exceptions that are applicable in the instant situation. Therefore, if you take or continue to hold office and attempt to simultaneously serve in both of these positions, you would be doing so contrary to the provisions of those statutes. 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. Under the Ethics Law, any salary, benefits or financial gain which you would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any compensation that you would receive would be a private pecuniary benefit. King, Opinion 85 -025. As to your specific situation, if you do not receive compensation as an auditor (school directors do not receive compensation), there would not be any private pecuniary benefit and hence no conflict under the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Seaman, 96 -524 March 4, 1996 Page 4 Conclusion: As a Township Auditor or School Director, you are a "public official" subject to the provisions of the Ethics Law. As a public official, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Township Auditor and School Director, provided you are not compensated in both positions. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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 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 thirty (30) 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 mall, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Vincent J. Dopko Chief Counsel