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)