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HomeMy WebLinkAbout00-512-S DamskerSTATE 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 March 23, 2000 Ruth S. Damsker Cheltenham Township Finance Officer 8230 Old York Road Elkins Park, PA 19027 -1589 Re: Simultaneous Service; Second Class; County; Township; Tax Collector; Supplemental Advice. Dear Ms. Damsker: This responds to your letter of February 15, 2000, 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 a tax collector in a First Class Township from simultaneously serving or being employed as a commissioner in a Second Class "A" County. Facts: In response to your letter Advice of Counsel, 00 -512 was issued is incorporated herein by reference. On for a supplemental advisory. In your February 15, 2000 letter, you state that you have reviewed 16 P.S. §402 of the County Code which was cited in Advice of Counsel, 00 -512. You believe that the foregoing section applies to all counties in Pennsylvania except for Second Class and Second Class "A" Counties. Since Montgomery County is a Second Class "A" County, you submit that the applicable provision dealing with incompatible offices is 16 P.S. §3402 which provides in pertinent part: § 3402. Incompatible offices (a) No elected county officer shall at the same time serve as a member of the legislative body of any city, borough, town or township of any class, nor as school director of any school district, nor as a member of any board of health. 16 P.S. §3402. Based upon the above provision, you opine that the positions of Township "Finance Officer" and County Commissioner are not incompatible. In Tight of the above additional facts, you ask for a supplemental advisory. 00 -512 -S Commissioner; First Class; of January 4, 2000 requesting an advisory, to you on February 10, 2000, which Advice February 15, 2000, you submitted a request FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Damsker,00 -512 -S March 23, 2000 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As previously noted, as Tax Collector for Cheltenham Township and Commissioner for Montgomery 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 §11.1. For administrative economy, the restrictions of Section 1103(g) outlined in Advice of Counsel, 00 -512 will not be repeated but are incorporated hererin by reference. As you were previously advised, the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa.Const.Art. 6, §2. Based upon the facts which you have submitted and upon a review of the Second Class County Code, 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. 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 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(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. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Second Class County Code. Conclusion: As Tax Collector for Cheltenham Township and Commissioner for Montgomery County, you are a "public official" 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 Tax Collector and County Commissioner, subject to the Damsker,00 -512 -S March 23, 2000 Page 3 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. 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 . Dopko Chief Counsel