HomeMy WebLinkAbout92-541Mr. Mat T. Mangino
Attorney at Law
325 East Washington Street
New Castle, PA 16101
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 19, 1992
92 -541
Re: Simultaneous Service, Member of City Airport Authority and
County Solicitor.
Dear Mr. Mangino:
This responds to your letter of January 13, 1992, in which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
imposes any prohibition or restrictions upon a member and
chairman of a city's airport authority from also serving or being
employed as a county solicitor.
Facts: Having recently been appointed by the Lawrence County
Board of Commissioners as Solicitor for the County of Lawrence,
you seek the advice of the State Ethics Commission You were
previously appointed by the Mayor of the City of New Castle as
Chairman of the New Castle Airport Authority, and you have served
in that capacity for over two years. Your position as Chairman
of the Airport Authority requires you to file Financial
Disclosure Statements and to take an oath of office. However,
you are not compensated in any manner for your services as
Chairman of the New Castle Airport Authority.
You state that Section 402 of the Pennsylvania County Code
indicates that a County Solicitor cannot hold public office while
serving as a County Solicitor. You pose the following - specific
- inquiries:
1. Whether your •position as Chairman of the New
Castle Airport Authority violates Section 402
of the County Code; and
, 2 - . - Whether the position of County •` Solicitor
would prohibit you from running as a delegate
to the Democratic National Convention.
Mr. Matthew T. Mangino
February 19, 1992
Page 2
On February 18, 1992, in a telephone conversation with the
Assistant Counsel for this Commission, you provided the following
additional information to be considered in issuing an advisory to
you. The New Castle Airport Authority is an administrative
agency which is not merely advisory, but rather, - makes decisions
and spends public funds beyond merely "reimbursing personal
expenses. You do not believe that the Airport Authority is a
legislative body in that it does not promulgate anything. You
state that the Authority recently amended its bylaws, but this
was only with the approval of City Council.
Based upon _ : "all of the above, you _ request an ::'expedited
advisory from this Commission.
Discussion: As a Member and Chairman of the New Castle Airport
Authority, 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. S402; 51 Pa. Code 51.1.- Additionally,
upon commencing the position of Solicitor for the County of
Lawrence, you would become a "public employee" as that term is
defined in the Ethics Law and hence, in that position as well,
you would be subject to the provisions of the Ethics Law. 65
P.S. S402; 51 Pa. Code S1.1.
Section 3(a) of the Ethics Act 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:
Section 2. Definitions.
Conflict or conflict of interest." U se
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
Mr. Matthew T. Mangino
February 19, 1992
Page 3
} 7
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 of f ic}' a1 or public employee, a member
of his immediate family or ' a business with
which he or , a member of his .immediate family
is associated.
f . - - "Authority of oaf fice 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 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee anything of monetary value and no public
official /employee- shall solicit or accept any thing of monetary
value based upon, the understanding that the vote, official action
or judgment of the public official /employee would be influenced
thereby,
It is initially noted that the Commission may only address
questions regarding the duties and responsibilities of public
officials /public employees within the purview of the Public
Official and Employee Ethics Law. If, however, certain
provisions of other laws impact upon the Ethics Law or the Ethics
Law accords jurisdiction in relation to other provisions of law,
then the. Commission may be required to review provisions of
law. Confidential "Opinion 90 -012,, at "5 (citing. Bigler, Opinion
85 -020) (reviewing Municipal Authorities Act). Accord,
Confidential Opinion 91 -001 at 4 (reviewing Second Class Township
Code). Under Section 3(a) of the Ethics Law quoted above, the
Commission has determined that .if- a particular statutory
enactment prohibits an official's receipt' of a particular
benefit, then that official's receipt of such a prohibited
benefit, in and through the authority of office, would also be in
contravention of the Ethics Law. Hoak/ ,McCutcheon v. -State
Ethics Commission, 77 .Pa. Comma. Ct. 529,466 A.2d 283 (1'983)..
In this case, the relevant `statutory enactment to be
reviewed is Section 402(a) of the County Code, which provides as
follows: .
1 $402. Intdtpatible Offices
Mr. Matthew T. Mangino
February 19, 1992
Page 4
(a) No elected county officer or county
Solicitor shall, at the same time, serve as .a
member of the legislative body.. ,of any city,
borough, town or township of any class r. = nor.
as treasurer or tax collector of any city,
borcugh, incorporated town or township, or
as school director of any school district,
nor as a member of any board of health.
16 P.S. 5402(a).
In considering the above provision of laws, the focus '-of an
application of the Ethics Law would be to determine whether your
receiving compensation as a County Solicitor while simultaneously
serving as Chairman of the New Castle Airport Authority would be
the receipt of a prohibited benefit, in and through the authority
of office, such that it would be in contravention Ot the Ethics
Law. Since you would be Serving as a treasurer, tax
collector, or school director, the only portion of the:above
provision which could conceivably be relevant pertains to
simultaneously serving as a county solicitor and as a member of
the legislative body of any city. Although this Commission would
not have the express statutory authority to interpret, this
provision of the County Code, it seems clear, based upon your
representations that the New Castle Airport. Authority does not
promulgate anything and that in fact in amending its bylaws, such
could only be accomplished with the approval of City Counbil,
that the Airport Authority would not be the legislative body of
the City of New Castle for purposes of applying the Ethics Law to
your circumstances
In applying the above provisions of the Ethics Law t6 the
question of simultaneous service, there does not appear to.} be any
real possibility of a private pecuniary benefit or inreit.
conflict arising if you were to serve as a 1341111C
official /employee in both capacities as Chairman of the WO,
Castle Airport- Authority and as Solicitor for the Cby of
Lawrence. Basically, the Ethics Law does not state that it is
inherently incompatible for a public official /employee td serve
or be employed as a Chairman of an Airport Authority and as a
County Solicitor. The main prohibition under the Ethics Law and
Opiutons of the Ethics Commission is that one may not serve the
interest$ Of two persons, groups, or entities whose intents
may be adverse. Sitiith Opinion, 89 -010. Irk the situation
outlined above, you would not be serving entities with interests
which are adverse to each other.
Mr. Matthew T. Mangino
February 19, 1992
Page 5
However, if a situation arises where you or the respective
entities you represent develop an adverse interest, then you must
remove yourself from that particular matter and publicly disclose
the nature of your interest both orally and in a written
memorandum filed with the secretary who keeps the minutes. If
such a situation would arise, additional advice may be sought
from the Commission.
Thus, in response to your first specific inquiry, this
Commission does not have the jurisdiction to determine violations
of the County Code, but your simultaneous ,service as Chairman of
the New Castle Airport Authority and as Solicitor for the County
of Lawrence would .. not transgress the Ethics Law subject to the
restrictions and qualifications noted above.
In response to your 'second specific inquiry; this Commission
does not have the jurisdiction to consider questions involving
simultaneous service - in a position with a political party, in
that such 'positions with political parties are not considered to
be positions of public office /employment within the parameters of
the Ethics Law.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law. Section 402 of the County Code
has been reviewed to the extent it,impacts>;upon an application of
the Ethics Law to the . circumstances which you have presented.
Conclusion: As a Member and Chairman of the New Castle Airport
Autho it-y, you are a "public official" subject to the provisions
of the Ethics Law. If you. commence the position of Solicitor for
the County of Lawrence, you will in that capacity be a "public
employee," and will be subject to the provisions of the Ethics
Law in that capacity as well. As a public official/employee,
you may consistent with Section 3(a) of the Ethics Law,
simultaneously serve in positions of a Member : and Chairman of
the New Castle Airport Authority and Solicitor for the :County of
Lawrence. Lastly, the propri .of the proposed course of
conduct has only been addressed under the Ethics Act.
Pursuant to Section 7(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 proeeeding,..providing 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.
Mr. Matthew T. Mangino
February 19, 1992
Page 6
Finally, if you disagree with this Advice or if you have any
reason to ohalleftge same, you may request that the full
Commission r eview this Advice. A personal appearance before the
Commission will be scheduled and a formal Opinion from the
Commission will be issued. Any such appeal must be in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
e'ry truly yours,
Vincent 171. Dopko,
Chief Counsel