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Home My WebLink About92-587Ms. Faith B. Thomas 411 Mason's Mobile City Warren, PA 16365 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 20, 1992 92 -587 Res Simultaneous Service, County Auditor, Coach Employed by School District. Dear Ms. Thomas: This responds to your letter of April 18, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon a county auditor from also serving as a coach hired and paid by a school district. Facts: Noting a prior conversation with Assistant Counsel for this Commission, you seek an advisory from the State Ethics Commission regarding your simultaneous service as an Auditor of Warren County, elected in November of 1991, and the Head Coach of the Warren High School Girls' Volleyball Team. You reference 16 P.S. S702(b) and question its applicability to your current situation. Your position as an Auditor of Warren County is a part -time position, which you also share with two other Auditors. Your other position, as Head Coach of the Warren High School Girls' Volleyball Team is a seasonal and part-time job only, running from August through October each year, which position you have held since 1990. You acknowledge that you are hired and paid by the School District to coach. You state that it has come to your attention that 16 P.S. S702(b) may prohibit you from coaching since you have been elected an Auditor. You state that you are not sure why this should be because your duties as an Auditor do not require any involvement with the Schdo1 District, School District budget, or the like, Additionally, you note that you were hired as the Head Coach years before you ran for the County Auditor position so you did not acquire your coaching position by exercising any kind of influence. Ms. Faith B. Thomas May 20, 1992 Page 2 Finally, if coaching as a School District employee would be out of the question, you ask whether coaching on a volunteer basis would be permitted. Based upon all of the above, you request an advisory from the State Ethics Commission as to whether you may continue to coach during your term of office. You note that you have already approached both Solicitors and have received conflicting responses but no assistance. Discussion: As an Auditor for Warren County, Pennsylvania, 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. 402. As to whether the Ethics Law would restrict or prohibit you as a Warren County Auditor from also serving as Head Coach' of the Warren High School Girls' Volleyball Team, hired and paid by the School District, it is noted that the State Ethics `Commission may only address questions regarding the duties and responsibilities Of public officials within the purview of the Public Official and Employee Ethics Law. The Commission does not specifically have the statutory jurisdiction to interpret the provisions Of the County Code. If, however, another provision of law such as , the County Code somehow impacts on the provisions - of the Ethics Law Or the Ethics Law accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler/ Opinion 85 -020. Section 3(a) of the Ethics Law provides: Section 3. Restricted. Activities (a) No .public official or , public employee shall engage in conduct that constitutes a conflict of interest. The following terias are defined under the Ethics Law "Conflict Or conflict of interest . " Use by a public official or public employee of the authority of his office or c mploymentr or any confideetial inf irmation reoei led through his hdldg public office or eflployment for the pivate pecuniary benefit of himself, a member Of his immediate family: or a business with whidh he or a member of his immediate - famil is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to Ms. Faith B. Thomas May 20, 1992 Page 3 16 P.S. S702(b . 5702. Eligibility (b) No person holding the office of county auditor shall at the same time hold or be employed in any office of the county, the county institution district, any school district, any board of health or an municipality authority of which the county is a member. 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-,o4' 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 which is necessary_ to the performance of duties:" and responsibilities unique " a particular public office or position of public employment. In addition, Sections amd (c) of .the Ethics Law provide in part that no person shall offer to a public official /employee anything of- monetary value or no public official /employee shall solicit or accept of monetary value based . upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced "therebyt. ReferAnce is made to these provisions. of the law not to imply that, there has been or will be any transgression thereof but 'Merely to provide a complete response to the question presented. The Commission has determined ` .if, a particular statutory enactment prohibits an ,official from receiving - of a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be . a use of the authority of office contrary - to Section 3(a) of the Ethics Law. In this respect, this Commission has been_, called upon, on various occasions, to determine" whether `a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the relevant statutory provision must be reviewed. In this case, the relevant statutory provision is 16 P.S. s702(b) which provides as follows: Ms. Faith B. Thomas May 20, 1992 Page 4 The above provision of the County Code does not 'appear to contain any exceptions applicable in the instant situation. On its face, the above provision specifically precludes a situation where a County Auditor would be employed by any school district. The facts which you have submitted acknowledge that you- are employed by a school district in your capacity -as the Head Coach'of the Warren High School . Girls' Volleyball Team. Therefore; if you take or continue to hold office as Warren County Auditor while simultaneously serving as an employee. of the-School District, you would be doing so contrary to the above provision• of the County Code and your service as County Auditor would be expressly prohibited by law. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, the State Ethics Commission may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Johnson, Opinion 86 -004. As a result of the foregoing, any salary, benefits or gain which•the.- public official would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or pecuniary benefit that the public official would receive would be a gain other than compensation provided for by law. Kinct, Opinion 85 -025. However, the Ethics Law would not restrict your proposed simultaneous service as a Warren County Auditor and volunteer coach of the Warren High School Girls' Volleyball Team where you would not be an employee of the School District. Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As an Auditor for Warren County, Pennsylvania, you are a "public official" subject to the provisions of the Ethics Law. As a public official you may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of Warren County Auditor and the Head Coach of the Warren High School Girls' Volleyball Team where you are hired and paid by the School District to coach. The Ethics Law would not restrict your proposed simultaneous service as a Warren County Auditor and volunteer Coach of the aforesaid team where you would not be an employee of the School District. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Piirsuaht to Section 7(11), this Advice is a complete defense in any enforc went proceeding initiated by the Commission, and evidence Of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Ms. Faith B. Thomas May 20, 1992 Page 5 This letter is a public,:: record and will be made available as such. Finally, if you disagree with this Advice of if you have any reason to challenge same, you may request that- the full Commission review this Advice. A personal--appearance before the Commission will be scheduled and a formai 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 S2.12. Sincerely, ',Mai Vincent . Dopko Chief Counsel 1