Loading...
HomeMy WebLinkAbout92-626Alan R. Krier, Esquire 92 -626 Jubel'firer, Carothers, Krier & Halpern Park View Center 10 Sheraton Drive P.O. Box 2024 Altoona, PA 16603 Re: Simultaneous Service, Borough Code Enforcement Officer and Borough Council Member. Dear Mr. Krier: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 10, 1992 This responds to your letters of July 31, 1992, and August 7, 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 simultaneous service as a borough code enforcement officer and a borough council member. Facts: As ;Solicitor for the Borough of Bellwood,. Blair County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of Mr. Elwood Stephens. YOU state that Mr. Stephens has acted as Code Enforcement Officer for the Borough for several years and was recently appointed by Borough Council to fill a vacant position on Council. Mr. Stephens has continued to act as Code Enforcement Officer subsequent to his appointment. You specifically request an advisory as to whether Mr. Stephens may continue to function in his paid position of Code Enforcement Officer, and, if so, the nature of any action that must be taken by Borough Council to allow Mr, Stephens to continue in this position. Discussion: It is initially noted that your inquiry may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and (11) of the Ethics Law makes it ga.ear that an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then 7 ' 4 Alan R. Brier, Esquire SeptPer 10, 19 9 2 Page 2 submit La ,signed and sworn complaint which will be investigated by the 4 Cgmmiasion if there are allegations of :Ethics Law violatios by a persoft who is subject to the Ethics Law. As a Borough Council Meter An Code Enforcement Officer for the Borough of Bellwood in Blair County, Pennsylvania, Mr. Elwood Stepchens is a public official /public employee subject to the provisions of the Ethics Law. 65'P.S. §402 ;51 Pa. Code §1.1. Section 3(a) of the Ethics Law provides: Section 3. Re = tr.cted A;t:tivites (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 Def ini1 on . "Conflict or conflict of interest." Use by a pi.blic official or public employee of the authority of his office or employment or any confidential information received through his 1 ©lding 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 associated.. "Conflict" or "conflict of . interest" does; not include an action having a de mini►i,.s economic impact or which affects to the same degrees a class consisting of the general . publ c 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 wha.ch 4le or a member Hof his inunediate family is associated. "Authority of office or employment . " The actual power provided by law, the exercise of which is neoesear'y to the performance of duties and responsibilities unique to a particular public office or position of public employment. TA addition, Sections 31b) and 3(c) of the Ethics Law provide �fl pAMV, that no .person, shall offer to a public official /employee amthing of monetary value and no public official /employee shall Alan R. Brier, Esquire September 10, 1992 Page 3 solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public would be influenced thereby. Turning to your specific inquiry, it is initially noted that the State Ethics Commission does not have the specific statutory jurisdiction to interpret the Borough Code or the Pennsylvania Municipalities Planning -Code, but that it is necessary to review those laws because- they may 'impact upon an application of the Ethics Law to your inquiry. S»ataro, Opinion No. 89 -009. The following provision of the Pennsylvania Municipalities Planning Code may be pertinent: S 10614. Appointment and powers of zoning officer. For the administration of a zoning ordinance, a • zoning officer, who shall not hold any elective office in the municipality. shall be appointed. The zoning officer shall meet qualifications established by the municipality and shall be able -to demonstrate to the satisfaction of the municipality. a working knowledge of municipal zoning. The zoning ' Officer shall administer the zoning ordinance in accordance with its literal terms, - and shall not have the power to .,permit any construction or any use or change. of use which does not conform to the toning ordinance. Zoning officers may be authorized to institute civil enforcement proceedings as a means of enforcement when acting within the scope 'of their employment. yam..;. ,; ; cam 53 P.S. S10614 added) ,p The above rovision_9 4 face precludes simultaneous service as a Zoning, ,Officer ai as an officer in any elective office in the municipality. It 4.,c ear that the office of: Bo Council Member is . an elective office, even where a particular individual has been apppinted,..to that elective office. However, it is not clear from your letter, inquiry whether the Enforcement Officer for the Borough of Bellwood acts as -a Zoning Officer-within the above provision. If such duties of the Zoning_ Officer are ' performed by the Code Enforcement Officer the above provision on its face declares that position to bay incompatible with any other elective office within the Borough of Bellwood. Even if the Borough' s Code Enforcement Officer .does =tact as its Zoning Offices, Section 1104 of the Borough Code provides: Alan R. Krier, Esquire September 10, 1992 Page 4 Section 1104. Appointments; /ncompatj.4ie Offices. Unless there is incompatibility in fact, any' elective or appointive officer of the borough shall be eligible to serve on any board, .commission, bureau Or other agency created by or for the borough, or any borough office created or authorized by statute and may accept apvointments re und e r, b u t n m ayor or co un ci lman shall ,Receive compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employee of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council_ may serve as borough manager or as secretary or treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. she -offices of secretary and treasurer may be- held by;-he same person when so authorized by ordinaiwce. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive `compensation therefor. All appointments to be made by council or - corporate authorities shall be itade by a majority of the members of council attending the meeting at which the appointment is' made, unless a different is required by statute. 53 P.S. §46104 (Emphasis added). Although the Borough Code does not declare the offices of Borough Council Member and Borough Code Enforcement Officer to be incompatible, Section 1104 on its 'face would - preclude a Borough Council Member from being compensated as a Borough Code Enforcement Officer: The State Ethics Commission ' bras determined - . that if a particular statutory enactment prohibits `an official frox receiving a particular benefit, then that official's receipt ` off,,_� such `a prohibited benefit, through the authority of public offidde,'would also be a use c►.f the authority office contrary to Section=3(a) of the Ethics Law. In applying this principle to Mr. Stephens in each of his capacities, as Code Enforcement Officer if he is,,pe.forming the duties of a Zoning Officer and therefore is statutorily precluded from holding any elective office 'in the Borough, his receipt of Alan R. Brier, Esquire, September 10, 1992 Page 5 compensation as a Borough Council Member, whether in the form of salary, benefits, or other gain, would not be authorized in l,aw' light of the foregoing provision of the Pennsylvania Munitipald;ties't R Planning Code. In his capacity as a Borough Council Member, although Section 1104 of the Borough Code would not preclude the simultaneous service", per se, it would on its face prohibit Council Member' Stephens from receiving compensation as a Borough Code Enforcement Officer while ser g. as a Borough Council Member. Therefore, any salary, benefits or other . gain which Council Member Stephens would receive as a Borough Code Enforcement Officer while serving as a Borough Council Member would not be authorized in law in light of the foregoing proyision of the Borough' 'code.. Any such gain or pecuniary ;benef would be a gain other_ than compensation provided for by law. Rind, Opinion 85 -0;25. Ljstly, the lropriety of the proposed conduct has only been addressed under the _Ethics Law the :'o '�app3,ica$iii*ty of any other d st t c9C e, or,.�i,inance, regulation orther' ode• of conduct other iaa "tie Ethics Law has not been considered in that they do not av ye an i ter retation of the Ethics Law. Conclusion: As a,Borough Council Member and Code Enforcement f Cvr for B 'rough of Bellwood in` 1 ir County, Pennsylvania, wood St ph `' `is a public official ,publi ' e h 1oyee subject to $��Xis.�oa Q� the Ethics Law. "If the " = Mies `= of a Code t�e . . 4418 q 2n- Of for the Borou i of Bellwrood `° 'rrciude acting as a 79 I n g Off ice: within the param F ez of "5" P ...-31Q614, then Mr. Stephens as a Code Enforcement 0flit r 'could not, 'consistent with the provisions "4f the Ethics La simui.taneously serve in the positions of Code Enforcement OfCer Borough. Collect' Member. Otherwise, Section 3(a) of the acs aw - wou'd not preclude the simultaneous service as a Co c '67 r eri OUf icer arid 'as a Borou Council" Member. However, ect5.b `9 of the Ethics Law would . � preclude Council Member Ste hpne 'rom receiving compensation as the Borough Code Enforcement Office w .ile serving as a`Borough Council Member. astly, the propfi.et ` o' t):le proposed' course''of conduct has onl een addressed tirfdeL`'dthe� hics Law. i ... .'_ .. 1J • E 'iF¢nt to Section 7(11), this .44vi.ce is a complete defense in " any g f orcement r ceedth ' ini '.ia c by . the Commission, and ,evidence of good fal. ` Conduct rn 'sri t of er civil or criminal 'proceeding, providirfl "th2' requesto- bat disclosed truthfiiLly all the material facts and coi!mtitted 'they a complained o± to reliance on the Advice giver.' " ' This letter is a public record and will be made available as such. :, ,,. :: a <. Alan R. Krier, Esquire September lb, 1992 Finally, if you disagree with this Advice or if you have any reasc n -o challenge same, you may request the't'' tke ;411 Commission :reView this Advice. A personal appearance before- e Commission IX'be sc i tiled and a formal Opinion from the Commission will be i ued. Any such appeal mu`st -in c.M iting and must be received at tbe-;pomm .ssion within 1,5 1 ; 1 4 s` of the date of #li.s: Advice pursuant to 51 Pa'. Cade s2. 12. ^: 4 truly yours, Vincent Dopl¢o, Grief Coti 'is 1.