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HomeMy WebLinkAbout92-008 ConfidentialI. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger DATE DECIDED: December 10, 1992 DATE MAILED: December 16, 1992 92 -008 Re: Conflict, Simultaneous Service, Incompatibility, Compensation, Private Pecuniary Benefit, Constable, Borough, Borough Council Member. This Opinion is issued in response to your confidential advisory request dated June 10, 1992. Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon an individual from simultaneously serving as a borough council member and as a constable elected within the same borough. II. FACTUAL BASIS FOR DETERMINATION: As the Solicitor for the Borough of A, Pennsylvania, you request an advisory from this Commission regarding the status of a current member of Borough Council who was elected to Council and as a Constable in November 1991 and is currently holding both offices. The Council Member specifically requests a confidential advisory as to whether he may hold both positions under the Ethics Law. After referencing and enclosing a photocopy of the Pennsylvania Supreme Court decision of May 19, 1992 in MacElree v. Learree, No. 13 E.D. Appeal Docket 1991), you interpret that decision to mean that Section 10 of the Ethics Law, 65 P.S. §410, permitted that constable to hold any elective office in a political party, but not in any other governmental office. Confidential Opinion 92 -008 December 16, 1992 Page 2 You assert that Legree is distinguishable from the instant matter because Legree was a council member for the City of Coatesville, a third class city, and that both the Third Class City Code and Coatesville City Ordinance prohibited a council person from also being a constable; in the instant matter, neither the Borough Code nor the ordinances of the Borough of A prohibit a council member from also being a constable. You conclude that, consistent with the interpretation of the Pennsylvania Supreme Court, Section 10 appears to permit a constable to be involved in the elective process of any political party but does not appear to explicitly prohibit a borough council person from holding any other governmental office such as constable. By subsequent letters dated September 18, 1992, and October 26, 1992, you have supplied the following additional facts. After citing Section 1104 of the Borough Code in part and asserting that a constable does not serve on a board, commission, bureau or other agency created by or for a borough, you state that the position of constable is not a borough position created or authorized by statute. You argue that Section 1104 is intended to apply to borough created boards and commissions such as zoning hearing boards, civil service commissions, planning commissions, recreation boards and the like. Since a constable serves and has authority to take action in the entire Commonwealth of Pennsylvania, you believe that a constable is not encompassed within the purview of any borough office and is not created by the Borough. You have submitted a copy of House Bill No. 2574 which was enacted in 1992. That Act serves to explain the many duties that a constable may undertake, and establishes an advisory board known as the Constable Education and Training Board within the Pennsylvania Commission on Crime and Delinquency of the Commonwealth. Section 1.4 of that Act authorizes the Board, with the review and approval of that Commission, to perform many functions including administration, training, certification of qualifications and implementation of a constable's duties. The funding for such activities comes from the general fund of the State Treasury. You conclude that the legislation produces a Commonwealth administered program and a Commonwealth office. You offer further support for your contention that Section 1104 of the Borough Code does not prohibit a borough council member from also acting as a constable by referencing the case of Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). After performing an extenstive review of the status of a constable, the Pennsylvania Supreme Court found that a constable neither acts on behalf of nor under the control of the municipality. Since a constable was not an employee of that municipality, the Confidential Opinion 92 -008 December 16, 1992 Page 3 municipality has no authority to control the constable's activities regardless of which magisterial district he is working. The Court further stated that a constable is not paid by the municipality nor does the First Class Township Code include the constable as an elected officer of the township. After noting that the Borough Code does not include a constable as an elected officer of the borough, you conclude that the Supreme Court has held that a constable is an independent contractor and not an employee of the Commonwealth, the judiciary, the municipality or the county in which he works. Due to the uncertainty of the law in this area, the Council Member seeks the instant advisory. III. DISCUSSION: As a Council Member for the Borough of A, the Council Member is a "public official" as that term is defined in the Ethics Law and hence is subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. The individual's status as a constable shall be discussed below. 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 Confidential Opinion 92 -008 December 16, 1992 Page 4 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 addition, Sections 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 accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Before applying the above provisions of the Ethics Law to the question of the individual's simultaneous service as a Borough Council Member and as a Borough Constable, two points must initially be discussed. First, this Opinion addresses your inquiry with regard to prospective conduct only. A reading of Sections 7(10) and (11) of the Ethics Act makes it clear that an opinion /advice may be given only as to prospective (future) conduct. Second, we must address the question of whether a constable is, in that capacity, a "public official" as defined in the Ethics Law and subject to the Ethics Law. This Commission has previously administratively excluded constables from coverage under the Ethics Law, considering them to be part of the judiciary over which the Commission has no jurisdiction. This policy made sense under the Pennsylvania Constitution, which provides in pertinent part: (c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace. . . . Pennsylvania Constitution, Article V, Section 10(c). Constables are elected officials who serve process and execute orders for district justices (formerly "justices of the peace "). Therefore, it had appeared that constables were subject to regulation by the Confidential Opinion 92 -008 December 16, 1992 Page 5 Supreme Court and were therefore beyond the jurisdiction of this Commission under the "separation of powers" doctrine. Nevertheless, the Supreme Court of Pennsylvania has decisively concluded that constables are not part of the judicial branch.. In a 1983 case, Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983), U.S. cert. den. in 104 S.Ct. 1279, 465 U.S. 1024, the Pennsylvania Supreme Court held that a constable is "related staff" of the Courts as defined by the Rules of Judicial Administration, who aids the judicial process but is not supervised by the courts. Rosenwald, supra, 501 Pa. at , 462 A.2d at 647; In Re: Act 147 of 1990, 598 A.2d 985, 987 (1991) (Citing Rosenwald, supra). Thereafter, the General Assembly enacted Act 147 of 1990 which provided for regulation of constables by the judiciary. (Former 42 Pa.C.S. §2941 et seg.). In 1991, the Supreme Court declared Act 147 of 1990 to be unconstitutional, invalid and unenforceable. In Re: Act 147 of 1990, 598 A.2d 985 (1991). Citing Article V, Section 2 of the Pennsylvania Constitution, the Supreme Court stated that it is the supreme authority of the judicial branch, and that legislation infringing on that authority over courts is invalid. The Court decisively determined that constables are not within the judicial branch: As a peace officer, and as a process server, a constable belongs analytically to the executive branch of government, even though his lob is obviously related to the courts. It is the constable's job to enforce the law and carry it out, just as the same is the job of district attorneys, sheriffs, and the police generally. Act 147 is unconstitutional and violates the separation of powers doctrine in our Constitution because it attempts to place constables within the judicial branch of government and under the supervisory authority of the judicial branch. . . At most, constables are "related staff" under the Rules of Judicial Administration. They cannot, however, be made part of the judicial branch under our Constitution. See, Rosenwald, supra. Id., 598 A.2d at 990 (Emphasis added). Therefore, this 1991 Supreme Court case decisively excludes constables from the judicial branch and invalidates the prior Confidential Opinion 92 -008 December 16, 1992 Page 6 rationale for excluding constables from coverage under the Ethics Law. We must therefore consider whether constables are "public officials" as defined in the Ethics Law and subject to the Ethics Law. The term "public official" is defined as follows: 65 P.S. §402. Section 2. Definitions "Public Official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. A constable is elected by the public, with vacancies being filled by court appointment. 13 P.S. §1, et seq. The Supreme Court has stated that a constable is an elected official. In Re: Act 147 of 1990, 598 A.2d 985, 986 (1991) (Citing 13 P.S. §1, et seq.). The Supreme Court has further stated its view that the constable belongs in the executive branch of government. Id. at 990. Thus, the definition set forth in the Ethics Law clearly would include a constable as an elected or appointed official in the executive branch. There is no exception which would apply. The statutory definition's sole exception applies to members of advisory boards, not constables. Nor do the Commission Regulations provide any basis for excluding constables from this definition. Our analysis of the status of constables under the Ethics Law need go no further. There is no need to review the powers and duties of constables, because the definition of "public official" does not hinge upon them. Although powers and duties are reviewed to determine status as a "public employee" they are not reviewed for determining status as a "public official" (unless it is to see whether a board is advisory). The definition of "public official" applies to constables; there is no exception which would exclude them; and the jurisdictional basis by which they have been previously excluded as part of the judiciary has been invalidated. Nevertheless, to fully understand the authority of a Confidential Opinion 92 -008 December 16, 1992 Page 7 constable, it is helpful to review the Supreme Court's analysis of the status of constables and the relevant statutory provisions including those which set forth the duties and powers of constables. Constables are elected within political subdivisions, specifically cities of the second and third classes, boroughs, incorporated towns, and townships. 13 P.S. S1 et sect. A constable may be removed from office by a court for being "unfit and incompetent to discharge his official duties" from "habits of intemperance or neglect of duty," or for acts of malfeasance or misfeasance. 13 P.S. 531. In the 1983 Supreme Court case discussed above, Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983), U.S. cert. den. in 104 S.Ct. 1279, 465 U.S. 1024, the Pennsylvania Supreme Court held that a constable for a first class township was not acting for or under the control of the Commonwealth, and therefore was not an employee of the Commonwealth. The Court held that the constable was not a township employee because he was not acting on behalf of or under the control of the township, could serve process in other magisterial districts in the county, and was not paid by the municipality. The Court further noted that the constable was not among the enumerated elected officers of the township. The Court decided that the constable was within the Rules of Judicial Administration's definition of "related staff" of the Courts, who aid the judicial process but are not supervised by the courts. Rosenwald, supra, 501 Pa. at , 462 A.2d at 647. In the 1991 Supreme Court case discussed above, the Supreme Court stated that a constable is an elected official. In Re: Act 147 of 1990, 598 A.2d 985, 986 (1991) (Citing 13 P.S. 51, et seq.). The Court cited its holding in Rosenwald, supra, as stating that a constable "is an independent contractor and is not an employee of the Commonwealth, the judiciary, the township, or the county in which he works," but is "related staff." Id. at 986 -987. The Court stated that the constable is a police officer and "peace officer." Id. at 990. Citing various precedents, mostly from other states, the Court stated: A constable is a known officer charged with the conservation of the peace, and whose business it is to arrest those who have violated it. By statute in Pennsylvania, a constable may also serve process in some instances. See generally, 13 P.S. 5541 -46. . . . As a peace officer, and as a process server, a constable belongs analytically to the executive branch of government, even though his job is obviously Confidential Opinion 92 -008 December 16, 1992 Page 8 related to the courts. It is the constable's job to enforce the law and carry it out, just as the same is the job of district attorneys, sheriffs, and the police generally. In Re: Act 147 of Act 1990, 598 A.2d 985, 990 (Numerous citations omitted). Since constables are not to be considered part of the judicial branch, the decisive consideration for purposes of the Ethics Law is the fact that constables are elected officials. Characterizing them as "independent contractors," police officers, peace officers, etc., means nothing under the Ethics Law's definition of "public official" which does not hinge upon the nature of the duties performed. Nevertheless, the various duties of a constable, set forth below, include a significant degree of discretionary authority. A constable has the following statutory powers /duties: 1. The power to appoint a deputy constable or constables in the political subdivision in which he was elected, subject to court approval, 13 P.S. SS21 -23. 2. The power to arrest without warrant, on view. 13 P.S. 545; 47 P.S. 5563; 32 P.S. 582. The offenses for which such arrest is authorized include breach of the peace, vagrancy, riotous or disorderly conduct, drunkenness, offenses against forest laws, and any unlawful act which tends to imperil personal security or property of citizens or which violates borough ordinances punishable by fine or penalty. 3. The power to use borough and township lockups and city or county prisons to temporarily detain prisoners, if deemed necessary by the officer in charge. 61 P.S. 5798. 4. Serving summons, warrants, complaints, and other process for matters before district justices, 13 P.S. 546; Pa.R.C.P.D.J. Nos. 307, 506. In serving said process, the constable may serve process throughout the county or elsewhere in the state, as provided by law, 13 P.S. 546; Pa.R.C.P.D.J. No. 307. 5. Serving process in suits instituted in any Pennsylvania court where the sheriff of any county is a party and there is no coroner in commission to serve process, 13 P.S. 541. 6. Serving and executing orders of execution by levy issued by the district justice upon tangible, non - perishable personal property located within the county. Pa.R.C.P.D.J. Nos. 403, 405, 406. During this process: Confidential Opinion 92 -008 December 16, 1992 Page 9 (a) If the defendant claims his statutory exemption in kind or in cash, the constable, as executing officer, respectively either: sets aside enough items specified by the defendant -- as appraised by the constable -- for meeting the exemption in kind; or sets aside from the proceeds of the sale the cash equalling the statutory exemption. Pa.R.C.P.D.J. Nos. 407, 408. (b) If the defendant fails to claim his statutory exemption, the executing officer chooses, appraises and sets aside property in kind, or sets aside cash from the proceeds of the sale for the exemption. Pa.R.C.P.D.J. No. 408. (c) The defendant or any party in interest may appeal to the district justice from any appraisal or designation of property by the constable. Pa.R.C.P.D.J. No. 408. (d) The constable, as executing officer, has the right to peaceably or by force break into and enter the place where the goods are contained for the purpose of manually taking possession of or selling the property levied upon. Pa.R.C.P.D.J. No. 411. (e) (f) (g) The constable, as executing officer, gives notice of the sale. Pa.R.C.P.D.J. No. 412. When selling personal property in execution, the constable delivers bills of sale upon request, Pa.R.C.P.D.J. No. 415, and may accept on account the receipt of the plaintiff for any property sold to the plaintiff. Pa.R.C.P.D.J. No. 414. Following the sale, the constable prepares a proposed schedule of distribution of the proceeds of sale and ultimately distributes the proceeds in accordance with said schedule unless written exceptions are filed with the district justice. Pa.R.C.P.D.J. No. 416. (h) The constable completes a "return" for his execution of the order, providing specific information regarding whether and how it was carried out. Pa.R.C.P.D.J. No. 419. Serving and executing orders for possession of real property, issued by the district justice. Pa.R.C.P.D.J. No. 516. During this process: (a) The constable, as executing officer, executes the order by using such force as is necessary to enter upon the property and eject the defendant or any unauthorized Confidential Opinion 92 -008 December 16, 1992 Page 10 occupant, and to deliver the possession of the property to the plaintiff or his agent. Pa.R.C.P.D.J. No. 519. (b) The constable completes a "return" for his execution of the order. Pa.R.C.P.D.J. No. 520. 8. Serving protection orders issued by the district justice under the Protection from Abuse Act. Pa.R.C.P.D.J. No. 1209. 9. With the . authority of the Department of Transportation, seizing driver's licenses which have been ordered to be surrendered by a court, district attorney or by the Department. 75 Pa.C.S. §1540(c). 10. The duty to take and keep any animal (other than dogs) found running at large in a quarantined district established by the Department of Agriculture for the prevention /suppression of disease. 3 P.S. §353. 11. With regard to elections: (a) Being present at the election district polling place during each primary and election and while the votes are being counted for the purpose of preserving the peace; (b) Clearing any obstruction to the door of the polling place which would prevent electors from approaching; (c) Maintaining order and quelling any disturbance if such arises; (d) Serving written notices to persons who are elected. 25 P.S. §3047. 12. The County Code lists constables among peace officers and directs peace officers to perform all duties authorized or imposed on them by statute. 16 P.S. S1216. The Crimes Code's definition of "peace officer" would also include constables. 18 Pa.C.S. §501. The powers /duties of the constable as a "peace officer" are: (a) The duty to report suspected child abuse. 23 Pa.C.S. S6311(b). (b) With regard to extradition proceedings, the power to execute warrants of arrest throughout the Commonwealth, 42 Pa.C.S. S9128-9130, or to arrest a person without a warrant based upon reasonable information that the accused is charged in the courts of a state with a crime Confidential Opinion 92 -008 December 16, 1992 Page 11 (c) The power to inspect files of fingerprints maintained by district attorneys. 61 P.S. 52175(c). (d) Taking a person believed to be severely mentally disabled to a facility for an emergency examination, either upon the issuance of a warrant by the county administrator or upon personal observation of the conduct of the person which would constitute reasonable grounds to believe he is severely mentally disabled and needs immediate treatment. In the latter instance, the peace officer would make a written statement upon arrival at the facility, stating the grounds for believing the person to be in need of such examination. 50 P.S. §7302(a)(1),(2). (e) Executing warrants of apprehension issued in military courts - martial. 51 Pa.C.S. §5204. Act 102 of 1992, approved July 9, 1992, prescribes the constable's fees for his performance of the following specific duties: punishable by death or imprisonment for more than one year, whereupon the peace officer must take the accused before a judge or issuing authority and make a complaint against him. 42 Pa.C.S. §9135. (1) Serving a complaint, summons or notice on suitor or tenant, either personally or by leaving a copy; (2) Levying goods, including schedule of property levied upon and set aside; (3) Advertising personal property to public sale; (4) Selling goods levied; (5) Clerk hired at sale; (6) Making return of not found or nulla bona (no goods); (7) Executing order of possession; (8) Ejectment; (9) Making return of service, other than not found; and Confidential Opinion 92 -008 December 16, 1992 Page 12 (10) Providing courtroom security as ordered. (g) In criminal cases: (1) Executing a warrant or effectuating the payment of fines and costs by attempting to execute a warrant; (2) Taking custody of a defendant; (3) Conveyance of defendant to or from court; (4) Attendance at arraignment or hearing; (5) Executing discharge; (6) Executing commitment; (7) Executing release; (8) Making returns to the court; (9) Holding a defendant while awaiting the arrival of the district justice at his or her office; (10) Conveying defendants for fingerprinting; (11) Fingerprinting or overseeing the fingerprinting of defendants at the direction of the district justice; (12) Providing courtroom security as ordered; and (13) Serving subpoenas. Act 102 of 1992, Section 1. Given that the Supreme Court has decisively ruled that constables are not part of the judicial branch, we are convinced and so conclude that constables are within the definition of "public official" set forth in the Ethics Law, subject to the Ethics Law. One of the requirements of the Ethics Law is the requirement Confidential Opinion 92 -008 December 16, 1992 Page 13 that a Statement of Financial Interests be filed each year that the public official holds the position and in the year after leaving such position. See, 65 P.S. §S404, 405. We would expect that the Borough Council Member /Constable on whose behalf you have inquired would not have filed a Statement of Financial Interests in his capacity as a constable based upon the prior administrative policy of this Commission. Based upon a constable's ability to perform his duties at a local, county and /or state level, we determine that a constable is a public official of the Commonwealth and shall file the Statement of Financial Interests with this Commission. 65 P.S. S404(a). However, in light of the above changes in the laws of Pennsylvania which warrant a finding that constables are now covered, we will exercise our administrative discretion and direct that the filings for constables begin on or before May 1, 1993 for the 1992 calendar year. We believe such action is necessary and appropriate given the change in filing status and the need for time in the dissemination of this Opinion. The foregoing action is consonant with delayed implementation for filing as to solicitors in Powell, Opinion 89 -025 and for municipal authority members in Dice, Opinion 85 -021. We shall now address the question of simultaneous service as a Borough Council Member and as a Constable elected within the same Borough. 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. The following provisions of the Borough Code are pertinent: §45801. Electors only to be eligible; incompatibility. Registered electors of the borough only shall be eligible to elective borough offices. All elected borough officers shall reside in the borough from which elected and shall have resided in the borough continuously for at least one year before their election. A school director shall not be eligible to an elective borough office. No individual shall at the same time hold more than one elective borough office. 53 P.S. §45801 (Emphasis added). Section 1104. Appointments; Incompatible Offices Unless there is incompatibility in fact, any elective or appointive officer of the Confidential Opinion 92 -008 December 16, 1992 Page 14 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 appointments thereunder, but no mayor or councilman shall receive compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employee of that borough. 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 the meeting at which the appointment is made, unless a different vote is required by statute. * 53 P.S. S46104 (Emphasis added). Although Section 1104 above would appear at first blush to allow a borough council member to hold any other borough office so long as compensation is not received for the other office, Section 45801 states, "No individual shall at the same time hold more than one elective borough office." Thus, if the office of constable were a borough office, simultaneous service as a borough council member and constable would be prohibited, with or without compensation. We are of the opinion that the elective office of constable is not a borough office. In Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983), U.S. cert. den. in 104 S.Ct. 1279, 465 U.S. 1024, the Pennsylvania Supreme Court impliedly rejected the notion that a constable for a first class township would be a township official by noting that the constable was not among the enumerated elected officers of first class townships as forth in the First Class Confidential Opinion 92 -008 December 16, 1992 Page 15 Township Code. Id., 501 Pa at 462 A.2d at 647 -648. Similarly, with regard to boroughs, although the voters of a borough elect a constable, 13 P.S. Si, et seq., constables are not included among the enumerated elected officials of a borough. 53 P.S. 545806. We would additionally note that in the Rosenwald case, supra, in the course of its discussion concluding that the constable was not a township employee, the Supreme Court noted that the constable could serve process throughout the county, in areas which would not include the township and would have nothing to do with the township. Rosenwald, 501 Pa. at , 462 A.2d at 648. Furthermore, the Court noted that the township did not have the ability to control the constable's activities and that the constable was not paid by the municipality but was compensated by fees for his services. A review of the powers and duties of a constable as set forth above demonstrates most clearly that the constable may act at the direction of those who have nothing to do with the borough -- such as the Governor, state and county officials, and the military. These additional factors would support our conclusion that a constable, although elected by borough voters, is not an elected borough official. This conclusion would alleviate any concerns under the aforecited provisions of the Borough Code as to simultaneous service as a borough council member and constable -- with or without compensation. In applying the 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 merely by virtue of the prospective simultaneous service as a Borough Council Member and as a Constable elected within the Borough. The Ethics Law does not state that it is inherently incompatible for a borough council member to simultaneously serve as such a constable. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined above, the Council Member would not be serving entities with interests which are adverse to each other. Finally, it is noted that the judicial decision which you have cited to the Commission, MacElree v. Legree, (No. 13 E.D. Appeal Docket 1991), issued by the Pennsylvania Supreme Court on May 19, 1992, would not be implicated in this case. Legree concerned simultaneous service of a City Council Member as Constable for the City where various statutory provisions as well as the City's Home Rule Charter declared those positions to be incompatible. In this Confidential Opinion 92 -008 December 16, 1992 Page 16 case, as distinguished from Lecrree, supra there is no statutory incompatibility precluding the individual's simultaneous service as a borough council member and as a constable elected within the borough. 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 Council Member for the Borough of A is a public official subject to the provisions of the Ethics Law. In the capacity of Constable, this individual is likewise a public official subject to the provisions of the Ethics Law including the requirement to file a Statement of Financial Interests. Statements of Financial Interests will have to be filed on or before May 1, 1993 for the calendar year 1992 and each year that a constable holds such a position and the year after he leaves such a position. The Ethics Law would not preclude the Borough Council Member's simultaneous service, with or without compensation, as a Constable elected within the same Borough. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. 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. By the Commission, AFtwe James M. Howl Chair