The URL can be used to link to this page

Home My WebLink About97-616 SchroederSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 16, 1997 Richard J. Schroeder 401 Pikeland Avenue 97 -616 Spring City, PA 19475 Re: Simultaneous Service; Chairman, Zoning Hearing Board; School Director. Dear Mr. Schroeder: This responds to your letter of September 10, 1997, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law imposes any prohibition or restrictions upon a Chairman of a Zoning Hearing Board from simultaneously serving as a School Director. Facts: You are currently serving as the Chairman of the Zoning Hearing Board of Spring City in the County of Chester, Pennsylvania. You are seeking election in November to the Spring Ford Area School District Board of School Directors. You indicate that you expect to be elected to that position because you are unopposed. The Spring Ford School District (School District) is based in Royersford, Montgomery County. The School District includes the Borough of Spring City as part of its attendance boundaries, but it does not have any physical holdings within the Borough of Spring City. You state your view that the Pennsylvania Municipalities Planning Code would not prohibit your proposed simultaneous service in these two positions since your position on the Zoning Hearing Board is an appointed position. You further believe that no conflicts would arise for you because the School District does not have any holdings within the Borough of Spring City, and more than likely, it will not have any such holdings in the future due to the lack of developable land. Discussion: As Chairman of the Zoning Hearing Board of Spring City, you are a "public official" as that term is defined in the Public Official and Employe Ethics Law Schroeder, 97 -616 October 16, 1997 Page 2 ( "Ethics Law ") and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. Sections 3(a) and 3(j) of the Ethics Law provide: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 P.S. §§403(a), (j). The following terms that pertain to conflicts of interest under the Ethics Law are defined as follows: 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 Schroeder, 97 -616 October 16, 1997 Page 3 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 applying the above provisions of the Ethics Law to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. Turning 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 official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict (See, Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 3(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 3(a), the Ethics Law would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 3(j) as set forth above. In this case, based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as Chairman of the Zoning Hearing Board of Spring City and School Director for the Spring Ford Area School District. Consequently, such simultaneous service would be permitted within the parameters of Sections 3(a) and 3(j). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Conclusion: As Chairman of the Zoning Hearing Board of Spring City, you are a "public official" subject to the provisions of the Ethics Law. You may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Chairman of the Zoning Hearing Board of Spring City and School Director for the Spring Ford Area School District, 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. Schroeder, 97 -616 October 16, 1997 Page 4 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 the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, ncent Dopko Chief Counsel