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Home My WebLink About01-555 GarriganFrank E. Garrigan, Esquire Garrigan & Rosini 112 East Independence Street Shamokin, PA 17872 ADVICE OF COUNSEL May 18, 2001 01 -555 Re: Simultaneous Service, Assistant County Solicitor; Solicitor for County Controller. Dear Mr. Garrigan: This responds to your letter of April 19, 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 county solicitor from simultaneously serving or being employed as a solicitor for the county controller. Facts: You state that you are currently the Assistant County Solicitor. The possibility has arisen for you to become the Solicitor for the County Controller. You seek an advisory as to whether you may hold both positions simultaneously. Discussion: The submitted facts do not indicate whether you are employed as opposed to retained by the County as its Assistant Solicitor. Assuming you are employed by the County as Assistant Solicitor, you would be considered a public official /public employee subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1102; 51 Pa. Code §11.1 and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa.Code §11.1; PJS v. State Ethics Commission, 697 A.2d 286, (Pa. Commw. Ct. 1997) (Conflict of interest provisions of the Ethics Act apply to "solicitors who are public employees and not just on retainer .... "); Compare, CPC v. State Ethics Commission, 698 A.2d 155 (Pa. Commw. Ct. 1997), alloc. den., 704 A.2d 640 (Pa. 1997) (Retained -as opposed to employed - solicitors are not public officials /public employees under the Ethics Act). 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. Garrigan, 01 -555 May 18, 2001 Page 2 (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 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. Garrigan, 01 -555 May 18, 2001 Page 3 Although the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Act to determine that a conflict exists based upon the statutory incompatibility. Kinq, Opinion 85 -025. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. In order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the respective county code must be reviewed. In the instant case, the submitted facts do not indicate whether the two positions in question are in the same county. Further, the submitted facts do not specify the class to which the county or counties referenced in the request belong. Without such pertinent information, reference to the County Code, 16 P.S. § 101 et seq. or the Second Class County Code, 16 P.S. §3101 et seq. cannot be made. Therefore, only general advice may be given. Where a statutory provision would appear to forbid simultaneous service in the positions in question, any financial gain or pecuniary benefit that the public official /public employee would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. Kinq, Opinion 85 -025. Assuming such an incompatibility provision would exist, simultaneous service in the positions of Assistant County Solicitor and Solicitor to the County Controller would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. Where no statutorily - declared incompatibility would exist, simultaneous service in the positions in question would not be prohibited. 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). In this case, based upon the submitted facts, there does not appear to be an inherent conflict that would preclude simultaneous service as Assistant County Solicitor and Solicitor to the County Controller. 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Assuming you are employed as opposed to retained by the County as Assistant Solicitor, you would be considered a public official /public employee subject to the Garrigan, 01 -555 May 18, 2001 Page 4 Public Official and Employee Ethics Act, 65 Pa.C.S. §1102; 51 Pa. Code §11.1 and the Regulations of the State Ethics Commission. Where a statutory provision would appear to forbid simultaneous service in the positions in question, any financial gain or pecuniary benefit that the public official /public employee would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. Where no statutorily - declared incompatibility would exist, simultaneous service in the positions in question would not be prohibited. There does not appear to be an inherent conflict that would preclude simultaneous service as Assistant County Solicitor and Solicitor to the County Controller. Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude you from simultaneously serving in more than one position, but in each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as 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