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HomeMy WebLinkAbout96-608 GrahamJulie M. Graham Solicitor Butler County 124 West Diamond Street PO Box 1208 Butler, PA 16003 -1208 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 22, 1996 96 -608 Re: Simultaneous Service, County Commissioner and Industrial Development Authority Board Member. Dear Ms. Graham: This responds to your letter of October 17, 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 County Commissioner from also serving or being employed as a Member of the County Industrial Development Authority. Facts: As Solicitor of Butler County, Pennsylvania, you have been authorized by Butler County Commissioner Glenn L. Anderson (Anderson) to request an advisory from the State Ethics Commission on his behalf. Anderson currently serves as a Member of the Board of Butler County Commissioners, having originally been elected to that position effective January 1992 and re- elected effective January, 1996. You state that under the terms of the Industrial and Commercial Development Authority Law, the governing body for Butler County, the Board of Commissioners, makes appointments to the Industrial Development Authority Board (Authority). Authority Members receive no compensation for their services pursuant to 73 P.S. §379, and the By -laws of the Authority contain no prohibition as to a Commissioner holding a Board seat. You understand that Section 3(a) of the Ethics Law provides that no public official shall engage in conduct that constitutes a conflict of interest. Based upon the above facts, you request an advisory as to whether there would be any restrictions Graham /Anderson, 96 -608 November 22, 1996 Page 2 upon Anderson as to simultaneously serving as a County Commissioner and as an Industrial Development Authority Board Member. It is noted that although Members of Industrial Development Authorities do not receive compensation as Members, the Board Members are statutorily allowed to serve in compensated officer positions. 73 P.S. §379(c). Discussion: As a Commissioner for Butler County, Pennsylvania, Glenn L. Anderson (Anderson) is a "public official" as that term is defined in the Ethics Law and hence he is 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 anything of monetary value and no public official /employee shall solicit or accept anything 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 arising merely from simultaneous service as a County Commissioner Graham /Anderson, 96 -608 November 22, 1996 Page 3 and as an Industrial Development Authority Board Member. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /public employee to simultaneously serve or be employed in the said capacities. 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, Anderson would not be serving entities with interests which are inherently adverse to each other. 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, Anderson 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. Conclusion: As a Commissioner for Butler County, Pennsylvania, Glenn L. Anderson is a "public official" subject to the provisions of the Ethics Law. As a public official /employee, Anderson may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of County Commissioner and Industrial Development Authority Board Member, 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 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 mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at Graham /Anderson, S November 22, 1996 Page 4 the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, ( 6 1 t.:-crN Vincent J Dopko Chief Counsel