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HomeMy WebLinkAbout01-600 JonesSally Jones, Watershed Specialist Pike County Conservation District HC6, Box 6770 Hawley, PA 18428 Dear Ms. Jones: ADVICE OF COUNSEL November 13, 2001 01 -600 Re: Simultaneous Service, Watershed Specialist and Township Planning Commission Member. This responds to your letter of October 9, 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 a Watershed Specialist from simultaneously serving or being employed as a member of the Lackawaxen Township Planning Commission. Facts: You currently serve as Watershed Specialist for the Pike County Conservation District ( "Conservation District "). You state that the Conservation District is a legal subdivision of state government. The position currently receives 80% funding from the Pennsylvania Department of Environmental Protection and 20% funding from the Pike County Commissioners through an allocation made to the Conservation District. You state that you are considered, for all intents and purposes, a county employee. As Watershed Specialist, your major responsibilities include conducting an ongoing water quality monitoring program for the county in the 18 major watersheds in the county; assisting local residents with water resource technical assistance; working with local citizen based groups such as Watershed Associations and Conservancies to advise and assist in their organization and programs; and administering several PA DEP Growing Greener Grant projects within Pike County and at least two stream restoration projects, which include PA DEP funding and Federal 319 Non -point source Protection Program funding. You also review and comment on changes in state regulations that may affect water resource policies within Pike County. Further, you occasionally assist with review and comment on erosion and sediment control plans for construction sites as they relate to water resources issues, although you state that this is not among your normal office staff responsibilities. You are a resident of Lackawaxen Township, Pike County, which currently has several openings for members on its local township planning commission. The planning commission positions are volunteer positions. You seek guidance as to whether the Ethics Jones, Number November 13, 2001 Page 2 Act would prohibit you from serving as Watershed Specialist for Pike County and a voting member of the Lackawaxen Township Planning Commission (Planning Commission). Discussion: As Watershed Specialist for Pike County Conservation District, you are a "public employee" 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 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 pertaining 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. Jones, Number November 13, 2001 Page 3 "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. In this case, even assuming that the Planning Commission is the type where its members are subject to the Ethics Act, there does not appear to be an inherent conflict that would preclude simultaneous service as Watershed Specialist and a member of the Planning Commission based upon the facts which have been submitted. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Watershed Specialist for Pike County Conservation District, you are a "public employee" subject to the provisions of the Ethics Law. Subject to the qualifications noted above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Watershed Specialist and a member of the Lackawaxen Township Planning Commission, 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. Jones, Number November 13, 2001 Page 4 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