HomeMy WebLinkAbout98-588 LombardoSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
August 18, 1998
James J. Lombardo
Pennsylvania Dept. of Community and Economic Development
Governor's Center for Local Government Services
325 Forum Bldg.
Harrisburg, PA 17120
Re: Simultaneous Service, Deputy Director for the Governor's Center for Local
Government Services; Candidate for Township Supervisor.
Dear Mr. Lombardo:
This responds to your letter of July 30, 1998, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law imposes any
prohibition or restrictions upon a Deputy Director for the Governor's Center for Local
Government Services with regard to simultaneously serving as a candidate for
township supervisor or as an elected township supervisor.
Facts: You currently serve as the Deputy Director for the Governor's Center for
Local Government Services ( "the Center "), a non -civil service management position in
the Pennsylvania Department of Community and Economic Development. The Center
produces policy positions relative to local governments in the state, provides free
technical assistance to local governments, and administers three financial programs:
the Local Government Capital Projects Loan Program, which involves a 2% loan to
local governments with populations of Tess than 12,000, to purchase equipment and /or
to undertake construction projects of public facilities; the Municipal Financial Recovery
Program, which involves municipalities that are declared financially distressed; and the
Shared Municipal Services Program, which involves grants to two or more units of
local government to provide cooperative and /or regional services. You state that you
do not personally approve any grant applications. Rather, your office offers
recommendations to the Executive Office, which then approves or disapproves the
applications.
You have submitted a brochure about the Center together with copies of your
current job description, a list of essential job functions for your job classification, and
an organizational chart, which documents are incorporated herein by reference. You
have also submitted an opinion from legal counsel for the Department of Community
and Economic Development.
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec @state.Da.us
98 -588
Lombardo, 98 -588
August 18, 1998
Page 2
You request an advisory from the State Ethics Commission as to whether you
may, while serving as the Deputy Director for the Governor's Center for Local
Government Services, become a candidate for Township Supervisor in East Hempfield
Township, Lancaster County.
Discussion: As the Deputy Director for the Governor's Center for Local
Government Services, you are a public official /public employee subject to the
provisions of the Public Official and Employee Ethics Law ( "Ethics Law "). 65 P.S.
§402; 51 Pa. Code § 1 1.1. Likewise, if elected to the office of Township Supervisor,
you would in that capacity be a public official subject to the Ethics Law.
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
Lombardo, 98 -588
August 18, 1998
Page 3
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.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
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. The statutory definition of "business" does not include
governmental bodies.
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 the
Lombardo, 98 -588
August 18, 1998
Page 4
Deputy Director for the Governor's Center for Local Government Services and as a
candidate for Township Supervisor or as an elected Township Supervisor.
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. Specifically not addressed herein is the applicability of the Governor's
Code of Conduct.
Conclusion: As the Deputy Director for the Governor's Center for Local
Government Services, you are a public official /public employee 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 Deputy Director for the Governor's Center for
Local Government Services and as a candidate for Township Supervisor or as an
elected Township Supervisor, 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.
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.
erely,
v/cA 1 ` •!•,
Vincent J. opko
Chief Counsel