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HomeMy WebLinkAbout79-071 StollenwerkTO: RE: FACTS: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION December 19, 1979 Donald A. Stollenwerk Director of Development Millersville State College Millersville, Pennsylvania Director of Development of a State College 79 -071 On March 16, 1979, we received a request for an opinion from Mr. Donald A. Stollenwerk. He advised that he was a councilman of the borough of Millersville as well as the Director of Development of Millersville State College. He also advised that he negotiates with the Borough Council on behalf of Millersville State College for water supply and sewage disposal, rates, issues, problems including verification of quantities of water supply or sewage treated, negotiations relative to cost of service, discussions of responsibility for the solution of the problems that originate with or are alleged to originate with the college. He posed the following questions: 1. Is Millersville State College a business as defined under Section 2 of the Act and can there be an inherent conflict between the objectives of the Commonwealth of Pennsylvania and one of its political subdivisions? 2. Is there sufficient appearance of a conflict of interest between my two positions to preclude my continuing in both despite the fact that my financial interests are unaffected by actions taken in either capacity? 3. Would my continuance as a public official of the Borough of Millersville prohibit me from representing the college and the commonwealth before the Council of the Borough of Millersville as provided in Section 3, Paragraph 9(e) of Act 170? 4. Can I continue as Councilman for the Borough of Millersville and seek reelection if I so choose without OPINION OF THE COMMISSION PAGE 2 being found in violation of Act 170, thus placing my employment by the Commonwealth of Pennsylvania in jeopardy? DISCUSSION: The issue is to what extent may a Director of Development of a State College be involved in local government consistent with the purpose of the State Ethics Act. Section 2 of the State Ethics Act limits :he discussion of "a business" to a business organized for profit. Therefore, Millersville State College is not a business and there is no inherent conflict between the objectives of the Commonwealth and of its political subdivisions. Section 3 (e) is applicable only to former public employees and public officials, and therefore does .got apply to Mr. Stollenwerk. Section 1 of the State Ethics Act requires that holders of public office "present neither a conflict nor the appearance of a conflict with the public trust," The Commission holds that theme is not sufficient appearance of a conflict of interest between both positions to preclude continuing in both. However, it would be of an appearance of a conflict with a public trust for a director of a state college to negotiate with the same body of which he is a public official. Pursuant to Section 7(9)(i), this opinion 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. CONCLUSION: A director of c:,evelopment of a state college can continue as councilman for the borough of which that OPINION PAGE 2 There is a question as to whether §303 of the Political Subdivision Tort Claims Act applies only to eight categories of torts listed in S202 of the Tort Claims Act. A federal civil rights suit is not one of them. The other torts of slander and libel are also not listed. Under the Borough Code a Borough Council may authorize Borough funds to be expended on any matter involving Council members, provided that matter is within the scope of their official duties. Pursuant to further discussion with the Department of Justice, if a Common Pleas Court on a Petition for Declaratory Judgment under the Borough Code or a federal court exercising ancillary jurisdiction finds the torts complained of within the scope of the defendant's official duties, these defendants may vote on whether Borough funds should be expended. If a court of competent jurisdiction finds the torts complained of are not within the scope of their official duties, they may not vote Borough funds, and the court may declare such decision to apply borough funds void from the beginning. CONCLUSION: The State Ethics Act does not bar Borough Councilmen from voting on expending borough funds for their legal defense if the torts complained of were committed within the scope of their official duties. The decision as to whether these allegations fall within the scope of official duties is for a court to decide, not the Ethics Commission. Pursuant to Section 7(9)(i), this opinion 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. ( l _ � �� PAUL J. S Chairman ` 7 (SEAL)