The URL can be used to link to this page

Home My WebLink About97-009 CarltonDear Mr. Carlton: 1997. I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Earl F. Carlton 162 West Mowry Road Monaca, PA 15061 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Julius Uehlein DATE DECIDED: 5/30/97 DATE MAILED: 6/11/97 1I. FACTUAL BASIS FOR DETERMINATION: 97 -009 Re: Simultaneous Service; Second Class Township; Board Member; Supervisor; Fire Inspector; Compensation; Incompatibility. This Opinion is issued in response to your advisory request letter dated April 14, Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a Member of a Township Board of Supervisors from being appointed to the compensated position of Township Fire Inspector. You serve as a Member of the Potter Township Board of Supervisors which, in June of 1994, adopted the 1993 Editions of the BOCA Building and Fire Codes. Fees were established by the Board for building and fire inspections under those Codes. The Board of Supervisors appointed the Fire Inspector from a neighboring Township as the Potter Township Fire Inspector to perform inspections to ensure compliance with the Fire Code. The Board split the fire inspection fee on a percentage basis with 40% payable to the Fire Inspector and 60% to the Township. After the Fire Carlton, 97 -009 June 11, 1997 Page 2 Inspector died in the fall of 1996, the Board appointed a person from another community to the Potter Township Fire Inspector position. At that time, the Board also changed the fee split percentage to a 50 %150% basis. After a few months, the Fire Inspector resigned because he did not have the time for the position. Another Member of the Board of Supervisors suggested that you might be able to fill the position of Fire Inspector since you currently serve as Assistant Fire Chief for the volunteer fire department in Potter Township. You expressed interest in the position and stated your intention to take the BOCA examination at your own expense. A question has arisen as to whether it may be a conflict of interest for a Member of the Board of Supervisors to be appointed as Fire Inspector for the Township and receive compensation for that position. You request an advisory from this Commission as to whether you may serve in both positions. I11. DISCUSSION: - As a Member of the Board of Supervisors for Potter Township, Beaver County, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 402. 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: "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, Sections 3(b) and (c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public Carlton, 97 -009 June 11, 1997 Page 3 official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. As to whether the Ethics Act would restrict or prohibit you from also serving as Township Fire Inspector, it is noted that this Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the Public Official and Employees Ethics Act. We do not have the statutory jurisdiction to interpret the provisions of the Second Class Township Code. If, however, another provision of law impacts upon the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Hessinger, Order No. 931, affirmed in part, RH & TW v. SEC, 677 A.2d 1004 (1996). We have determined that if a particular statutory enactment prohibits an official from - receiving a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the Second Class Township Code must be reviewed: § 65602. Organization meeting; appointment of secretary and treasurer (c) The board of supervisors may appoint a supervisor to be employed as roadmaster, laborer, secretary, treasurer, assistant secretary, assistant treasurer or in any employe capacity not otherwise prohibited by this or any other act. 53 P.S. §65602(c). 53 P.S. §65403(b). § 65403. Supervisors (b) Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position. Nothing in this subsection shall prohibit a supervisor from being a member of a township planning commission created under the act of July 31, 1968 (P.L. 805, No. 247), known as the "Pennsylvania Municipalities Planning Code." Although the Second Class Township Code (Code) was amended in 1995 to broaden the allowable positions of employment for supervisors, the prohibition as to holding "any other elective or appointive township office or position" remains in force. In particular, §65602(c) does not enumerate "fire inspector" as a position of Carlton, 97 -009 June 11, 1997 Page 4 employment to which a supervisor may be appointed. Further, §65403(b) prohibits a supervisor from holding any other appointive township office. Thus, the Code does not appear to allow a supervisor to hold the appointed position of fire inspector. Therefore, if you attempt to simultaneously serve in both positions, you would be doing so contrary to the provisions of the Code. Further, if you were to serve as Supervisor while simultaneously serving as Fire Inspector, you would be holding the position of Fire Inspector which is expressly prohibited by law. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, this Commission may review the Ethics Law to determine whether a conflict exists based upon the statutory incompatibility. As a result of the foregoing, any salary, benefits or gain which you as a public official would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or pecuniary benefit that you would receive would be a financial gain other than compensation provided for by law. Confidential Opinion, No. 93 -003, appeal dismissed, Suehr v. SEC, 651 A.2d 648 (1994). Under Section 3(a) of the Ethics Law, you may not simultaneously serve as Township Supervisor and as the appointed compensated Township Fire Inspector. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. IV. CONCLUSION: A Township Supervisor is a public official subject to the provisions of the Ethics Law. A Member of a Township Board of Supervisors is prohibited under Section 3(a) from simultaneously serving as an appointed compensated Township Fire Inspector. 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. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty 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. y the Commission, 06 9 cupus/106 Daneen E. Reese Chair