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HomeMy WebLinkAbout98-506 MooreSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 26, 1998 Stanley R. Moore 193 East Main Street West Alexander, PA 15376 Re: Simultaneous Service, Borough Councilman and Constable. Dear Mr. Moore: 98 -506 This responds to your letter of December 20, 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 Borough Councilman from simultaneously serving as a Constable. Facts: You have been elected as Councilman and Constable in the Borough of West Alexander. You ask whether there would be a conflict of interest if you would simultaneously hold both positions. Discussion: As a Councilman for the Borough of West Alexander, you would be considered a "public official" as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law ") and hence you would be subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. As a Constable elected within the Borough of West Alexander, you would likewise be considered a "public official" subject to the Ethics Law. See, Confidential Opinion, No. 92 -008. 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 Moore, 98 -506 January 26, 1998 Page 2 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 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. Section 3(f) of the Ethics Law provides as follows: Section 3. Restricted activities Moore, 98 -506 January 26, 1998 Page 3 (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. In applying the above provisions of the Ethics Law to your inquiry, you are advised that in Confidential Opinion, No. 92 -008, the State .Ethics Commission reviewed various judicial precedents and provisions within the Borough Code and determined that the Ethics Law would not preclude simultaneous service as a Borough Council Member and Constable elected within the same Borough. If in your capacity as constable you plan to perform services for the Borough of West Alexander, itself, further advice should be sought from this Commission as to the applicability of Sections 3(a) and 3(f). See, Povich. Order No.1043. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Conclusion: As a Councilman for the Borough of West Alexander, you would be considered a "public official" as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law ") and hence you would be subject to the provisions of the Ethics Law. As a Constable elected within the Borough of West Alexander, you would likewise be considered a "public official" subject to the Ethics Law. You may, consistent with the Ethics Law, simultaneously serve in the positions of Constable and Borough Councilman, subject to the restrictions, conditions and qualifications set forth above. If in your capacity as Constable you plan to perform services for the Borough of West Alexander, itself, further advice should be sought from this Commission as to the applicability of Sections 3(a) and 3(f). Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Pursuant to Section 7(111, 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 as such. Moore, 98 -506 January 26, 1998 Page 4 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. erely, Vincent J..Dopko Chief Counsel