Loading...
HomeMy WebLinkAbout89-022 DeitrickMr. Donald E. Deitrick Box 133 Orangeville, PA 17859 Dear Mr. Deitrick: 1989. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast James M. Howley Michael J. Washo DATE DECIDED: September 27, 1989 DATE MAILED: October 10. 1989 Re: Conflict, Public Official, Borough Councilmember, Employment by Borough, Mayoral Candidate, Simultaneous Service. This Opinion is issued in response to your request of August 18, Whether the Public Official and Employee Ethics Law imposes any restrictions or prohibition upon a borough councilmember, who is employed on a part time basis for street management and snow removal and is also employed as a certified waterworks operator, from running for the office of mayor of the borough. II. Factual Basis for Determination: 89 - 022 You currently serve in Orangeville Borough as a non - compensated councilmember with your term expiring in December. In addition, you are a permanent part time borough employee performing street management and snow removal duties. The Borough also pays you a monthly salary to operate the waterworks for which you are certified. You seek advice as to whether you may receive compensation for your two borough jobs while you run for office of borough mayor. Mr. Donald E. Deitrick Page 2 III. Discussion: As a Councilmember for Orangeville Borough, you are a public official as that term is defined under the Public Official and Employee Ethics Law. As such, you are subject to the provisions of the Ethics Law and the restrictions therein are applicable to you. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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 addition, Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or Mr. Donald E. Deitrick Page 3 accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve both as a public official /employee and as borough employee. Basically, the Ethics Law does not state that it is inherently incompatible for a borough mayor /councilmember to be employed by the borough. The main prohibition under the Ethics Law and opinions of this Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Smith, Opinion 89 -010. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. Although we do not have jurisdiction to interpret the Borough Code, it is necessary to review that law since it may impact upon the Ethics Law. Spataro, Opinion 89 -009. In particular, Section 1104 of the Borough Code provides: "Unless there is incompatibility in fact, any elective of appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointment thereunder, but no mayor or councilman shall receive compensation therefor. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending Mr. Donald E. Deitrick Page 4 Section 1104 of the Borough Code does establish an incompatibility for elective /appointive borough officials from receiving compensation for serving in any other borough office. Part - time employment for street management or full -time employment as waterworks operator are not other borough offices. Therefore, the Ethics Law would not prohibit you from running for the Office of Mayor of the Borough. If you are elected mayor, you would not be precluded under the Ethics Law from continued employment as waterworks operator or part -time employe for street management duties because these positions of employment are not borough offices. However, you could not vote or participate as a public official in matters regarding the positions of waterworks operator or street manager nor could you vote on setting the compensation for those positions. In such cases, Section 3(j) of the Ethics Law would require you to publicly announce and disclose the nature of your interest in a memorandum filed with the secretary recording the minutes. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. IV. Conclusion: the meeting at which the appointment is made, unless a different vote is required by statue." 53 PS 46104. As an Orangeville Borough Councilmember, you are a public official subject to the provisions of the Ethics Law. The Ethics Law would not preclude you from running for borough mayor, and accepting compensation from your borough employment as to street management and water works operator if you are elected and assume the office of mayor because such positions are not considered borough offices. However, you must abstain from voting or participating on matters involving the position or salary of waterworks operator or street manager and in those instances you must publicly annouce and disclose the nature of your interest in a memorandum filed with the secretary recording the minutes. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the evidence of the advice given. Mr. Donald E. Deitrick Page 5 This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. such. By - Commi sion ELe,/k• lena G. Hughes, Chair G. Sieber Pancoast and James M. Howley dissent.