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HomeMy WebLinkAbout01-530 StrohlMary Strohl to 171 South 4 Street Lehighton, PA 18235 Re: Conflict; Public Official /Employee; Intake Officer; Carbon County Action Committee for Human Services; Department of Community and Economic Development; Borough Tax Collector; Candidate. Dear Ms. Strohl: ADVICE OF COUNSEL March 20, 2001 01 -530 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 "), 65 Pa. .S. §1101 et seq., presents any prohibition or restrictions upon an intake officer with the Carbon County Action Committee for Human Services as to seeking office as a borough tax collector. Facts: You are currently employed by the Carbon County Action Committee for Human Services ("CCACHS"). You have submitted a copy of your job description, which is incorporated herein by reference. The job description is for an Intake Officer for an unknown office within the Department of Community and Economic Development ( "DCED "). There is no mention of CCACHS anywhere on the job description. Although you have not submitted a copy of an organizational chart for your position, it shall be assumed for purposes of this advice that you are employed by DCED as an Intake Officer for CCACHS. You are planning to run for the office of borough tax collector in the general election in November. You state that if elected, you would resign from your position with CCACHS. You state that you have been advised by DCED that you would not violate the Hatch Act or any other policies if you would seek the position of borough tax collector. You request an advisory from the State Ethics Commission as to whether you would have a conflict of interest if you would run for the borough tax collector position. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based Stroh!, 01 -530 March 20, 2001 Page 2 upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an Intake Officer for the Carbon County Action Committee for Human Services ( "CCACHS ") in the Department of Community and Economic Development ( "DCED "), you are a public employee as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: $1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act 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 instant matter, 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As to your specific inquiry, the Ethics Act would not bar you from seeking the office of borough tax collector while you remain employed as an Intake Officer for CCACHS. However, a public official /public employee may not use the authority of his public position — or confidential information obtained by being in that position — for the advancement of Stroh!, 01 -530 March 20, 2001 Page 3 his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) of the Ethics Act would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business or primary /election campaign activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of bids or proposals, Gorman, Order No. 1041. The propriety of the proposed conduct has only been addressed under the Ethics Act; 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 Act. Specifically not addressed herein is the applicability of the Hatch Act, any other agency policy, or the respective municipal code. Conclusion: As an Intake Officer for the Carbon County Action Committee for Human Services, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. §1101 et seq. Subject to the qualifications noted above, the Ethics Act would not prohibit you from seeking the office of borough tax collector while you remain employed as an Intake Officer with the Carbon County Action Committee for Human Services. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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 §13.20. 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