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HomeMy WebLinkAbout92-626-SAlan R. Krier, Esquire Jubelirer, Carothers, Krier Park View Center 10 Sheraton Drive P.O. Box 2024 Altoona, PA 16603 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11-470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 27, 1992 & Halpern 92 -626 -S Re: Simultaneous Service, Borough Code Enforcement Officer and Borough Council Member, Supplemental Advice. Dear Mr. Krier: This responds to your letter of September 17, 1992, in which you requested supplemental 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 where the borough has a population of less than 3,000. Facts: As. Solicitor for the Borough of Bellwood, Blair County, Pennsylvania, you seek a supplemental, advisory from the State Ethics Commission on behalf of Mr. Elwood Stephens. 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. Following letters of request dated July 31, 1992, and August 7, 1992, Advice of Counsel No. 92 -626 was issued which is incorporated herein by reference. That Advice concluded that if the duties of a Code Enforcement Officer for the Borough of Bellwood include acting as a Zoning Officer within the parameters of 53 P.S. §10614, then Mr. Stephens as a Code Enforcement Offi could not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of Code., Enforcement Officer and Borough Council Member. The Advice concluded.that Section 3(a) of the Ethics Law would not otherwise preelude the simultaneous service as a Code Enforcement Officer and as a Borough Council Member, but would preclude Council Member Stephens from _receiving Alan R. Erier, Esquire October 27, 1992 Page 2 compensation as a Code. Enforcement Officer while serving ras a Borough Council Member, based upon Section 1104 of the Borough Code, 53 P.S. §46104. That provision provides as follows:. Section 1104. , appointments ; _ Ir c,,,�mpatil .s Offices. Unless thus i . 4.ncompati4ktrcin fact anv e .ective or- 4pps iat -v offic,r of '13 bgro40,)}1 ,1 i• o se on =: boy c•mm -i bu ea' : .or other _ _a4.ercy . create _ by 4 for the bore 2h r for ( 1,11 . 1 4 ( 1,11 . 1 4 boNR4 gf#f g gre.0 Si or _ a tho -. • - sty to - a e ,'•• theres}0 , -T but_ r}Q mayor __ or sounckima�Y 311411 rece co npe t iitre or . 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 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 =inay at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same h person when "so authorized by ordinance. Nothing erein contained shall affect the eligibility of any borough official to hold any other public office pr receive compensation therefor. All :`appointments to be made by council or the corporate authorities. shall be made by a majority of - -the members of - council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S. §46104 (Emphasis added). Following the issuance of Advice 92-626, you have requested a supplemental advisory based upon certain additi.onai facts which you 'hive prOi ided . yoU state that'the`Borough of Bellwood has no zoning ordinance and the Code :Enforcement Officer is merely` an officer` who enforces Borough building codes and nuisance ordinances. You further proffer your opinion that as to Section 1104 of the Borough Code, the first part of the first - ' sentence was to apply to the si,tuatiQn where an elected official is appointed to another position. You. state that in this case Mr. Stephens already occupies the other position and is being paid for that position and is appointed to the Borough Council, which in the Borough of Alan R. Krier, Esquire October 27, 1992 Page 3 Bellwood is an unpaid position (all Bellwood Borough Council Members waive any compensation and are not paid .for servic4 as a Borough Council Member). You state your belief that since Mt. Stephens already had the paid position and was appointed to the unpaid Borough Council position, the purpose of Section 1104 to prevent a person with an official position from using his position to obtain some financial advantage is not present in this scenario. Further, you point out the portion of Section 1104 of the Borough Code which states, "No elected borough official of a borough with a population of 3,000 or more..may serve as an employee of that borough." You ,feel that this implies that an elected official in a Borough with a population of less than 3,000 may serve as an employee of the Borough. You believe that the term "employee" would imply compensation. It is noted that in a telephone conversation on September 22, 1992, you advised the State Ethics Commission for the first time that the Borough of Bellwood has a population of less than 3,000 -- specifically 2300. You state that you disagree with the portion Of Advice 92 -626 which concludes that Section 1104 of the Borough Code would preclude the Council Member from receiving compensation for his duties as Code Enforcement Officer. since Mr. Stephens' :position as Code Enforcement Officer preceded his appointment to Council, and he is only being paid for one position, the one he had first. Discussion: The relevant provisions of the EthiCS Law which would be applicable in this matter have already been fttlly set forth_in Advice 92 -626 and are incorporated, herein by reference. They X11 not be repeated, but rather the focus of this supplemental .AtdvIce shall be directed toward the narrow issues which you have raised in light of the additional facts which, you have zprovided fbliowing the issuance of Advice 92 -626. First, with regard to the concern set forth L :the' prior Advice as to simultaneous service as a zaninq office 'and. a an officer in any elective office in the .mu ra Ci: ttlity, yver have= now clarified that the Borough of Be:Ilwooc Jres no:..1ci i g otdinance and that the Code:: Enforcement Officer is .merely ate: Officer w+ho enforces' Borough building codes and nuisance GSr'dinan Aased - mpof this additional information which you have provided., At wOuld appear that Section 1a6r1.4 of the Pennsylvania Man Cipali:ti:es III arming Code would., not be implicated. Selexind, with regard to: the' question of compensation as Code Enforcement Officer while simu.ltaneouol7 serving aa Borough Council Member~, hasect upon the new irrtorma jaat w h yaw have provided that the pmputration. of the Hoc d; is less than 3,000, the Ethics: flaw would not preclude NW., SistelifteM from receiving compensat±on as; a Code Eizeoznzeraffirt c is'e *hJle- sirodltanec5usly such. Alan R. Brier, Esquire October 27, 1992 Page 4 serving as a Borough Council Member for the Borough of Bellwood. 'Having reached this conclusion, your opinion as to the 4nierrpretation of the first part of the first sentence of Section _1104 of the Borough Code need not be ' addressed. Lastly, the propriety of the proposed donduct has only been addressed- under the Ethics Law;'the appliedbility of any other statute) cede, ordinance, regulation or other code of conduct other than the Ethics Law has been considered_ ihT that they do not invol'te an interpretation Of the Ethics Law. Conclus sns As a Borough Council Member and Code Enforcement Officer foe the Borough-of Bellwood in• Blair County',,- Pennsylvania, Mr. Elwood Stephens• is a public off - clal /public employee subject to the provisions of the Ethics Law. -As a publie- ' official /public employee, Mr Stephens may, consistent with Section 3(a) of the Ethics Law, Simultaneously serve In the positions of Borough Council Member and Code Enforcement officer. Section 3(a) of the Ethics Law would not preclude Mr. Stephens from receiving compensation as a Code Enforcement Officer while serving as a Borough Council Member, given'that_ the Borough's population is less than 3,000. Lastly, the propriety of the- proposed course of conduct has only been addressed under =the Ethics Law: Pursuant to Section 7(11)/this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and eVidehce of good faith conduct in any other:• or criminal proceeding, providing the requester has- disc1bsed truthfully all the material facts and committed the acts in reliance on the Advice given. �;� .. This letter is a public record and will be made' - aiiailable as Finally,' if you disagree with this Advice or if you have any reason to challenge same, you may request that the full review this Advice. A personal appearance :before the Commission will be scheduled and a formal Op .ni an'from'the Commission will be issued. Any such appeal must be in writing aid rust be reddlved at the Commission within 15 days of the date `of "t r .s Advice pursuant to 51 Pa. Code §2.12 Very. 'truly 'yours - , Vincent . Dopko, Chief Counsel