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Home My WebLink About99-644 JamesCharles E. James P.O. Box 254 Westfield, PA 16950 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 23, 1999 Re: Simultaneous Service; Mayor; Commissioner; County; Borough. Dear Mr. James: (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethicsri 99 -644 This responds to your letter of November 19, 1999, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") imposes any prohibition or restrictions upon an unpaid borough mayor from simultaneously serving or being employed as a county commissioner. Facts: You have recently been elected Commissioner of Tioga County. You currently serve as Mayor of the Borough of Westfield within Tioga County, an unpaid position. You request an advisory as to whether you may retain your position as Borough Mayor once you are sworn in as County Commissioner. Discussion: As Mayor of the Borough of Westfield, Tioga County, you are a "public official" as that term is defined in the Ethics Act and hence you are subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code § 1 1.1. Sections 1103(a) and 1103(j) of the Ethics Act provide: Section 1103. Restricted activities. James, 99 -644 December 23, 1999 Page 2 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). The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: 65 Pa.C.S. §1102. 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 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 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. 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 1103(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. James, 99 -644 December 23, 1999 Page 3 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 1103(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 Mayor of the Borough of Westfield and Commissioner of Tioga County. Consequently, such simultaneous service would be permitted within the parameters of Sections 1 103(a) and 1 103(j). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As Mayor for the Borough of Westfield, Tioga County, you are a "public official" subject to the provisions of the Ethics Act. You may, consistent with Section 1 103(a) of the Ethics Act, simultaneously serve in the positions Mayor of the Borough of Westfield and Commissioner of Tioga County, 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 Act. Pursuant to Section 1107(11), an 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, provided 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. Fina / /y, if you disagree with this Advice or if you have any rra$on to challenge same, you m y ape the. H dvice to the to Commission. persona/ ap arrnce be fore the Commission will be scheduled and a formal Opinion will be issued b will the Commission. Any $uch appeal m st be i writing and must be g tually received at the Co mm s n within t i (30 days f the date „of t is vie pursuant P to 51 Pa. &pcte § 1 J. 2(h he appeal nm b fi /e eceivedat, the Co m i n by hand s .de /iv ( r JJ Sat mail de ervice, or � X t ansmiss ssion within 7T ' -7_aged Spies Failure to y such an appeal the a y Y ( J days may at th Gomm thin thirt ( 3 0 da s i appea! y result in the dismissal m issa/ of the ince ely Vincent J. pko Chief Couns