The URL can be used to link to this page

Home My WebLink About98-617 FlynnDavid Flynn, Councilman Borough of Port Carbon Borough Hall, 301 1st St. Port Carbon, PA 17965 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL November 30, 1998 98 -617 Re: Simultaneous Service, Councilman and Zoning Officer. Dear Mr. Flynn: This responds to your letter of October 29, 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 Councilman from simultaneously serving or being employed as a part -time Zoning Officer. Facts: You have served as a Councilman in Port Carbon Borough ( "Borough "), Schuylkill County, for approximately one year. The population of the Borough is less than 3,000 residents. The Borough Zoning Officer recently resigned and Borough Council requested that you accept the position, which position is part -time, non - union, and at -will. You have agreed to accept the position as Zoning Officer with no compensation and request an advisory from the State Ethics Commission concerning your simultaneous service as a Borough Councilman and a part-time Borough Zoning Officer. Discussion: As a Councilman in Port Carbon Borough ( "Borough "), Schuylkill County, you are a "public official" as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law ") and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). The following terms that pertain to conflicts of interest under the Ethics Law are defined as follows: FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Flynn,, 98 -617 November 30, 1998 Page 2 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 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 this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the Pennsylvania Municipalities Planning Code must be reviewed: 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. Flynn, 98 -617 November 30, 1998 Page 3 53 P.S. §10614. The above appears to forbid simultaneous service in the positions in question. Any financial gain or pecuniary benefit that the public official /public employee would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. King, Opinion 85 -025. Therefore, simultaneous service in the positions of Borough Councilman and (part-time) Borough Zoning Officer 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. The foregoing is applicable even if you take no compensation as Zoning Officer but receive compensation as a Borough Councilman. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As a Councilman in Port Carbon Borough ( "Borough "), Schuylkill County, you are a "public official" subject to the provisions of the Ethics Law. You may not, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Borough Councilman and Borough Zoning Officer. 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. incent J. opko Chief Counsel