HomeMy WebLinkAbout97-515 MikushGail Dobson Mikush
Tax Collector
Borough of Baldwin
3344 Churchview Avenue
Pittsburgh, PA 15227
Dear Ms. Mikush:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 29, 1997
Re: Simultaneous Service, Tax Collector and Library Board Member.
97 -515
This responds to your letter of December 23, 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 Tax Collector from also serving as a Member of a
Borough Library Board.
Facts: You are the Tax Collector for the Borough of Baldwin and are interested in
serving on the Baldwin Borough Library Board. You state that Members of the Library
Board have checked their rules and have found no problem with your appointment to the
Board. You have also checked with the Department of Community Affairs and they found
no prohibition. Additionally, the Borough Code contains no prohibition against your
serving on the Library Board. Borough Council will be making an appointment to this
position on January 20, 1997. You request a written advisory from the State Ethics
Commission so that the members of Borough Council will not have any reservations
appointing you as a Member of the Library Board.
Discussion: As Tax Collector for the Borough of Baldwin, 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.
Mikush, 97 -515
January 29, 1997
Page 2
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 or
inherent conflict arising if you were to serve both as a public official /employee and as a
Library Board Member. Basically, the Ethics Law does not state that it is inherently
incompatible for a public official/ employee to serve or be employed as a Library Board
Mikush, 97 -515
January 29, 1997
Page 3
Member. 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.
Tuming 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 officiaVpublic 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.
Conclusion: As Tax Collector for the Borough of Baldwin, you are 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 Tax
Collector and Library 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.
Mikush, 97 -515
January 29, 1997
Page 4
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 the Commission within thirty (30) days may result in the
dismissal of the appeal.
S
Vincent J. •opko
Chief Counsel