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HomeMy WebLinkAbout99-504 SlavenMichael Slaven 4140 Henderson Rd. Hickory, PA 15340 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 4, 1999 99 -504 Re: Conflict; Simultaneous Service; Emergency Medical Technician; Compensation; Firefighter; Chief; Volunteer Fire Company; Township. Dear Mr. Slaven: This responds to your letter of December 17, 1998, by which you requested advice from the State Ethics Commission. Issue: Whether the Ethics Act imposes any prohibition or restrictions upon an Emergency Medical Technician /paid firefighter from simultaneously serving or being employed as the chief of a volunteer fire company. Facts: You are a paid Emergency Medical Technician ( "EMT ") /firefighter with the Mount Pleasant Township Volunteer Fire Company, Inc. ( "Fire Company "), located in Mount Pleasant Township ( "Township "), Washington County. In the 1998 calendar year, the Township appropriated funds for paying firefighters and emergency medical technicians. The Township funding was not given to the Fire Company, but rather paychecks were issued by the Township to the individuals as if they were Township employees. These individuals receive W -2 forms from the Township. You presume that the same process will be used in future years. You have recently been elected Chief of the Fire Company. As Chief, you are responsible for training and operations. You are not an officer or a director of the incorporated Fire Company, nor are you responsible for "corporate governance." You ask for an advisory from the State Ethics Commission as to whether you may receive compensation as an EMT /firefighter while simultaneously serving as Chief of the Fire Company. Discussion: As the Chief of the Mount Pleasant Township Volunteer Fire Company, Inc. ( "Fire Company "), you are a "public employee" as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act ") and hence you are subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Sections 1 103(a) and 1 103(j) of the Ethics Act provide: FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Slaved, 99 -504 February 4, 1999 Page 2 (j) Voting conflict. - -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 Pa.C.S. §§1103(a), (j). Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms that pertain to conflicts of interest under the Ethics defined as follows: Section 1102. 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. The term 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 Act are Slaven, 99 -504 February 4, 1999 Page 3 65 Pa.C.S. §1102. to the performance of duties and responsibilities unique to a particular public office or position of public employment. Under Section 1 103(a) of the Ethics Act, 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. In applying the above provisions of the Ethics Act 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. 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 1 103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1 103(a), the Ethics Act 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 1 103(j) as set forth above. In this case, based upon the limited facts which have been submitted, there is no statutory incompatibility as an EMT /paid firefighter and Chief of the Mount Pleasant Township Volunteer Fire Company, Inc. As to the issue of whether an inherent conflict exists, no facts are provided, other than that you are responsible for training and operations, regarding your duties as the Fire Chief vis -a -vis the EMT's and firefighters. An inherent conflict may exist depending upon what your duties and responsibilities are as Fire Chief. If you have supervisory duties as to the EMT's and firefighters, you would have a conflict as to yourself in your other position of EMT and paid firefighter. For example, you could not as Fire Chief review or approve your own time sheets, could not do a performance evaluation review of yourself, could not approve any expense reimbursement claims submitted by yourself, nor take any type of action where you as Fire Chief would be reviewing or passing upon what you do as an EMT or firefighter. If you have such responsibilities as Chief, not only would you have a conflict as to matters involving yourself as EMT /firefighter, but you would have conflicts in certain instances as to the other EMT's /firefighters. For example, if you were required to furlough one or more EMT's /firefighters, you would have a conflict because a furlough of some other EMT /firefighter would ensure the continuation of your own position as EMT /firefighter. See, Pepper, Opinion No. 87 -007. The above is illustrative of conflicts that would arise if you as Fire Chief have such supervisory responsibilities over the EMT's /firefighters. If you do have such responsibilities over EMT's and firefighters, including yourself, it is difficult to conceive how you could function as a practical matter in the position of Fire Chief. Since the submitted facts are general in nature as to the structure of the Fire Company as well Slaven, 99 -504 February 4, 1999 Page 4 as the duties and responsibilities of the Fire Chief, the above response can only be generalized. This Advice is limited to addressing the applicability of Section 1 103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1 103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1 103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As the Chief of the Mount Pleasant Township Volunteer Fire Company, Inc., you are a "public employee" subject to the provisions of the Ethics Act. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of EMT /paid firefighter and Chief, conditioned upon the assumption that no inherent conflict exists between your duties and responsibilities as Fire Chief vis -a -vis your position and others as EMT's and firefighters. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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, Vincent . opko Chief Counsel