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HomeMy WebLinkAbout98-517 PeriniDorando Perini R.D. #7, Box 355 Easton, PA 18040 Dear Mr. Perini: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 25, 1998 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 98 -517 Re: Simultaneous Service, Borough Councilman and Building Inspector /Zoning Officer This responds to your letter of January 27, 1998, 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 with regard to simultaneously serving or being employed as the Borough's Building Inspector /Zoning Officer. Facts: Recently you were elected to serve as Councilman for the Borough of Stockertown. You have been serving as Building Inspector /Zoning Officer in the Borough of Stockertown for the past twenty -five years. You would like to simultaneously serve in all of these positions. You state that the Borough has a population of six hundred and twenty five (625) people. Referencing Section 1104 of the Borough Code, you ask for a clarification as to whether you may so simultaneously serve. Discussion: As Building Inspector /Zoning Officer for the Borough of Stockertown, you are a public official /public employee subject to the Public Official and Employe Ethics Law ( "Ethics Law "). 65 P.S. §402; 51 Pa. Code §11.1. Likewise, as a Borough Councilman for the Borough of Stockertown, you are a public official subject to the Ethics Law. ,I,. Perini, 98 -517 February 25, 1998 Page 2 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 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 Perini, 98 -517 February 25, 1998 Page 3 constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. Although the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. King, Opinion No. 85- 025. A conflict of interest exists under the Ethics Law where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 3(a) of the Ethics Law. In addition to "statutory incompatibility," from the perspective of the Ethics Law, 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 an inherent conflict under Section 3(a) or a statutorily- declared incompatibility, 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, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the following provisions of the Borough Code and the Pennsylvania Municipalities Planning Code must be reviewed: § 10614. Appointment and powers of zoning officer For the administration of a zoning ordinance, a zoning officer, who shall not hold any elective office in the municipality, shall be appointed. The zoning officer shall meet qualifications established by the municipality and shall be able to demonstrate to the satisfaction of the municipality a working knowledge of municipal zoning. The zoning officer shall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance. Zoning officers may be authorized to institute civil enforcement proceedings as a means of enforcement when acting within the scope of their employment. 53 P.S. §10614 (Emphasis added). §46104. 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 statue and may accept Perini, 98 -517 February 25, 1998 Page 4 appointments thereunder, but no mayor or councilman shall receive 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. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S. §46104 (Emphasis added). Your proposed simultaneous service as a Borough Zoning Officer and Borough Councilman shall first be addressed. The above provision of the Pennsylvania Municipalities Planning Code appears to forbid simultaneous service as Borough Zoning Officer and Borough Councilman. Therefore, simultaneous service in the positions of Borough Zoning Officer and Borough Councilman would be contrary to Section 3(a) of the Ethics Law to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. Any financial gain or pecuniary benefit that you would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. King, Opinion 85 -025. Your proposed simultaneous service as a Borough Councilman and Borough Building Inspector shall next be addressed. In this case, based upon the facts which have been submitted, there does not appear to be an "inherent conflict" that would preclude your simultaneous service as Borough Councilman and Borough Building Inspector. With regard to "statutory incompatibility," under Section 1 104 of the Borough Code, 53 P.S. §46104, set forth above, the question of whether you may simultaneously serve as a Borough Councilman and Borough Building Inspector in these positions and /or receive compensation for so serving hinges upon the nature of the position of Building Inspector. If a Borough Building Inspector is considered to be an employee of the Borough, it would appear that you could simultaneously serve as a Borough Councilman and as a compensated Borough Building Inspector for the Borough of Stockertown. See, Deitrick, Opinion No. 89 -022. The prohibition as to employment of a borough councilman by the borough only applies to boroughs where the population is 3,000 or more. On the other hand, if the position of Building Inspector is considered to be a "Borough Office," it would appear that the above provision of the Borough Code would Perini, 98 -517 February 25, 1998 Page 5 permit simultaneous service but would prohibit your being compensated as Building Inspector. Since, the State Ethics Commission does not have the express statutory jurisdiction to interpret the Borough Code, in the absence of a judicial ruling on the issue, it is not clear whether a Borough Councilman may be compensated as a Building Inspector. In any event, 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. It is clear under Section 3(a) of the Ethics Law that as a Borough Councilman you would have a conflict of interest in matters regarding other compensated positions which you would hold, such as the position of Building Inspector. For example, you could not vote to set your own compensation in such a position. In each instance of a conflict of interest, you would be required to abstain from participation and to satisfy the disclosure requirements of. Section 3(j) as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Conclusion: As Building Inspector /Zoning Officer for the Borough of Stockertown, you are a public official /public employee subject to the Public Official and Employe Ethics Law ( "Ethics Law "). Likewise, as a Borough Councilman for the Borough of Stockertown you are a public official subject to the Ethics Law. Simultaneous service in the positions of Borough Zoning Officer and Borough Councilman would be contrary to Section 3(a) of the Ethics Law to the extent a pecuniary benefit or financial gain would be received. You may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Borough Councilman and Borough Building Inspector subject to the restrictions, conditions and qualifications set forth above. Under Section 3(a) of the Ethics Law, a Borough Councilman who is also a Building Inspector for the Borough may or may not be allowed to accept compensation as a Borough Building Inspector depending upon the appropriate judicial forum determining whether such compensation is permitted under the Borough Code, 53 P.S. §46014. 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. Perini, 98 -517 February 25, 1998 Page 6 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. S cerely, Vincent J. pko Chief Counsel