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