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