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Home My WebLink About97-553 KowalskyRonald R. Kowalsky 702 Alerander Street Greensburg, PA 15601 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 11, 1997 97 -553 Re: Simultaneous Service, Employment, Employee of Borough Street and Sanitation Department, Candidate for Borough Council Member. Dear Mr. Kowalsky: This responds to your letters received on March 7 and March 14, 1997, 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 an employee of a Borough Street and Sanitation Department from also serving as a Borough Council Member. Facts: You are currently employed by the borough of Southwest Greensburg in the Street and Sanitation Department. You are also on the ballot for the May primary running for the office of Council Member for the Borough of Southwest Greensburg. You request an advisory as to whether you will be able to hold both positions and if there are any guidelines you must follow. Discussion: If elected to Council of the Borough of Southwest Greensburg, you will be 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. 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: Kowalskv, 97 -553 April 11, 1997 Page 2 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. Generally, the Ethics Law does not state that it is inherently incompatible for a public official/ employee to serve or be employed in two or more positions, subject to two areas of exception. First, under the Ethics Law and Opinions of the Ethics Commission, one may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse. Smith Opinion, 89 -010. Second, a person may not serve in two or more positions if there is a statutory incompatibility as to those offices or positions. King, Opinion 85 -025. As to the second exception noted above, 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 a particular pecuniary benefit or gain is strictly prohibited by law, the Borough Code must be reviewed: Appointments; incompatible offices Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive Kowaiskv, 97 -553 April 11, 1997 Page 3 compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employe of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer . . .. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. 53 P.S. §46104. As to the above, if a councilmember were to accept additional compensation not authorized in law for performing certain duties, such compensation would be considered a private pecuniary benefit contrary to Section 3(a) of the Ethics Law. In particular, if the Borough has a population of 3,000 or more, one could not under Section 3(a) of the Ethics Law serve as a Councilmember and be employed in the Borough. If the Borough's population is under 3,000, no prohibition would exist under the Borough Code and therefore such employment would be permitted under Section 3(a) of the Ethics Law. In cases where there is no prohibition to holding two or more public positions, a question of conflict of interest may arise. 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 public positions could result in a prohibited private pecuniary benefit, a conflict of interest would arise. In each instance of a conflict of interest, the public official /public employee 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: If elected to Council of the Borough of Southwest Greensburg, you will be a "public official" subject to the provisions of the Ethics Law. A public official may under, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Borough Street and Sanitation Department employee and Borough Council Member if the Borough has a population of less than 3,000, 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 Kowalskv, 97 -553 April 11, 1997 Page 4 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 the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Vincent J. Dop Chief Counsel