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HomeMy WebLinkAbout01-528 LehutskyMichael Lehutsky, Esquire Attorney & Counselor at Law 921 Main Street Honesdale, PA 18431 ADVICE OF COUNSEL March 20, 2001 01 -528 Re: Simultaneous Service, County; Assistant District Attorney, Borough Council Member. Dear Mr. Lehutsky: This responds to your letter of February 15, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") imposes any prohibition or restrictions upon an assistant district attorney from simultaneously serving as a borough council member. Facts: You are a resident of Honesdale Borough, Wayne County. You are also an Assistant District Attorney for Wayne County. You state that the position of Assistant District Attorney is a non - elected position. You are employed and paid by the County. Honesdale Borough will soon be holding primary elections for the position of Borough Council Member. You are interested in running for a seat on Council. You state that if you would run in the election and win a seat on Council, you would not quit your job as Assistant District Attorney. You quote a portion of Section 46104 of the Borough Code, 65 P.S. § 45101 et seq., which Section provides in pertinent part, "Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefore." 65 P.S. §46104. You also quote 65 P.S. § 14, which states, "Members of councils shall not hereafter hold any city or county offices in the choice of the people while serving as a member of said councils." 65 P.S. § 14. The above quoted provisions initially appear to you to be inconsistent. However, you reason that either 1) the more recently enacted Borough Code supercedes 65 P.S. § 14; or 2) the phrase, in the choice of the people," as it appears in 65 P.S. § 14, limits the ineligibility of council members to elected city or county offices only. You conclude that the latter resolves any inconsistency between the two provisions. You quote Section 402 of the County Code, 16 P.S. § 101 et seq., which provides in pertinent part, " No elected county officer ... shall, at the same time, serve as a member of the legislative body of any city, borough, town or township of any class ..." 16 P.S. § 402. Lehutsky, 01 -528 March 20, 2001 Page 2 You assert that 16 Pa.C.S.A. § 1401(f) precludes the "district attorney" from holding any legislative office. After stating that 65 Pa.C.S.A. § 7 recites a similar limitation upon a "district attorney," you opine that the County Code makes it clear that the position of assistant district attorney is an appointed position and cite Korner v. Warman, 695 A.2d 83 (Pa. Commw. 1995) for the proposition that assistant district attorneys serve only at the will of the appointing authority. You assert that the County Code provisions appear to be internally inconsistent, as well as inconsistent with the Borough Code and Title 65, pertaining to public officers. You believe that pursuant to Section 402 of the County Code, an appointed assistant district attorney's job should not be incompatible with an elected borough council position since an assistant district attorney is clearly not an "elected county officer." You state that it would seem improper to impute an elected district attorney's disqualifications to an appointed assistant district attorney since the County Code, you state, does not legislate the disqualification in the specific provisions governing assistants. You conclude that imputing the disqualification to an assistant district attorney would create an inconsistency with 16 P.S. § 402, which declares an incompatibility only for elected county officers. You resolve these issues by concluding that the position of assistant district attorney differs from the position of district attorney in that the former is appointed employment whereas the latter is an elective office. You conclude that there appears to be a clear intent to restrict the incompatibility only to elected positions. Therefore, in your view, a borough council member should not be declared ineligible for an appointed county job as an assistant district attorney based upon the language of the above noted provisions. You ask whether an elected borough council member would be prohibited from holding an appointed county position as an assistant district attorney. You further ask whether an ineligibility would arise only if an elected county office would be involved. Discussion: As an Assistant District Attorney for Wayne County, you are a "public official" as that term is defined in the Ethics Act and hence you are subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Sections 1103(a) and 1103(j) of the Ethics Act provide: $1103. Restricted Activities. (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. —Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as Lehutsky, 01 -528 March 20, 2001 Page 3 a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. § §1103(a), (j). The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: $1102. 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. The term 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 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. 65 Pa.C.S. §1102. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. Turning to the question of conflict of interest, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict (See, Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. Lehutsky, 01 -528 March 20, 2001 Page 4 In this case, based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as an assistant district attorney and borough council member. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). In that the above addresses the specific inquiry as to your situation, the general question about ineligibility vis -a -vis an elected county office need not and will not be addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As an Assistant District Attorney for Wayne County, you are a "public official" subject to the provisions of the Ethics Law. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Assistant District Attorney and Borough Council Member, subject to the restrictions, conditions and qualifications set forth above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), this Advice 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, provided 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel