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HomeMy WebLinkAbout93-535 CostenbaderDear Mr. Costenbader: STATE ETHICS COMMISSION - 309. FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 31, 1993 Terry L. Costenbader 93 -535 Costenbader Hardware, Inc. 3 -12 Qelaware Avenue Palmerton, PA 18071 Re: Simultaneous Service, Borough Plumbing Inspector and Borough Council Member. This responds to your letter of February 25, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions which would preclude simultaneous service as an uncompensated borough plumbing inspector and as a borough council member. Facts: You state that you are the Plumbing Inspector for Palmerton Borough, having been re- appointed on January 4, 1993, and receive approximately $100.00 peryear compensation. You intend to place your name on the ballot for Palmerton Borough Council. You state that in the event that you are elected, you intend to sign a written , waiver that you will not accept compensation as Plumbing Inspector. You seek an advisory from the State Ethics Commission as to whether you could retain your position as Plumbing Inspector without compensation and be a Member of Borough Council. Discussion: As a Plumbing Inspector for Palmerton Borough, Pennsylvania, you are a public official /employee as defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. If elected as a Borough Council Member, you would, in that position, be a "public official" as defined in the Ethics Law and therefore would be subject to the provisions of the Ethics Law in that capacity as well. 65 P.S. §402; 51 Pa. Code S1.1. Terry L. COstenbader March 31, 1993 Page 2 Section 3(a) of the Ethics Law provides: Se_ot,ion.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." 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. "Conflict" or "conflict of interest" 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. "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. 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 any thing 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 advisories are issued only as to the question posed. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does: not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve as a public Terry L. Costenbader March 31, 1993 Page 3 official /employee in both capacities as an uncompensated Borough Plumbing Inspector and as a Borough Council Member for the Borough of Palmerton. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to simultaneously serve in the aforesaid capacities. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse. Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are inherently adverse to each other. Turning to the question of conflict of interest, pursuant to Section 3(a) of the Ethics Law, 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Should a situation arise where the use of authority of public office /employment or confidential information received by holding the above public positions could result in a prohibited private pecuniary benefit, a conflict of interest would arise. In each instance of a conflict of interest, you would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same 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. Lastly, the propriety . of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law, Conclusion: As a Plumbing Inspector for Palmerton Borough, Pennsylvania, you are a public official /employee as defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. If 'elected as a Borough Council Member, you would, in that position,, be a ' "public official" as defined in the Ethics Law and therefore would be subject to the provisions of the Ethics Law in that capacity as well. 65 P.S. S402; 51 Pa. Code §1.1. As a public official/ employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve as an uncompensated Borough Plumbing Inspector and as a Borough Council Member for Palmerton Borough, 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 Law Terry L. Costenbader 31, 1993 Page 4 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 proceeding, 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance b 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. Very truly yours ;./ e I% Vincent J. Dopko, Chief Counsel