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Home My WebLink About22-504 Presto PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 27, 2022 To the Requester: Mr. Frank D. Presto Ambridge, PA 15003 22-504 Dear Mr. Presto: This responds to your correspondences dated January 10, 2022 and January 14, 2022 (additional information), by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as the Township Road Foreman of a First Class Township with regard to seeking election or simultaneously serving as a Commissioner for the Township? Brief Answer: There does not appear to be any statutory provisions in the First Class Township Code, 53 P.S. § 55101 et seq., that expressly authorizes (nor prohibits) a Township Commissioner to simultaneously serve as a Township employee. See Cabaday, Advice: 15-557. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows: Harmony Township, Beaver County, Pennsylvania is a First Class Township. You are currently employed as the Harmony Township Road Foreman. One (1) of the Townshipfive (5) Commissioners passed away and as such the Township is seeking to fill the vacancy. You pose Presto, 22-504 January 27, 2022 Page 2 the question whether you are permitted to serve as on the Harmony Township Board of Commissioners and simultaneously continue to be employed as the Harmony Township Road Foremen? You further state that you have reviewed the First Class Township handbook and the only incompatible office you note is that Township Managers and police officers cannot simultaneously serve as employees of the Township and as a Commissioner. You conclude by stating that if the need arises to vote on the Road Department Labor Union Contract you are fully aware \[that you\] would be abstaining from any and all voting on that item. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. 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. The term 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. Presto, 22-504 January 27, 2022 Page 3 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the (i.e. 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public official/public employee: purpose of obtaining for himself a private pecuniary benefit. Such directed action implies awareness on the part of the \[public official/public employee\] of the potential pecuniary benefit as well as the motivation to obtain that benefit for himself. Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a himself, his family, or his business, and then must take action in the form of one or more specific Id., 610 Pa. at 528, 22 A.3d at 231. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised that the Ethics Act would not prohibit you from seeking appointment as a Township Commissioner. With regard to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. Although the Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Act to determine whether a conflict exists based upon statutory incompatibility. Corcoran, Opinion 08-003. Presto, 22-504 January 27, 2022 Page 4 A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. See, Corcoran, supra; Confidential Opinion 03-003. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that officials receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. There do not appear to be any statutory provisions in the First Class Township Code, 53 P.S. § 55101 et seq., that expressly authorize a Township Commissioner to serve as a Township employee, and there are legal issues as to whether the First Class Township Code would permit such simultaneous service. See, McCutcheon v. State Ethics Commission, 466 A.2d 283 (Pa. Cmwlth 1983) (Note 9); Marshall, Order 1508. Therefore, if the First Class Township Code would permit you as the Road Foremen for the Township to simultaneously serve as a Township Commissioner, the Ethics Act would likewise permit such simultaneous service because there would be no receipt of a private pecuniary benefit that would be unauthorized in law. Conversely, if the First Class Township Code would prohibit the aforesaid simultaneous service, the simultaneous service would likewise be prohibited by Section 1103(a) of the Ethics Act to the extent you would receive compensation in either position. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, Brian D. Jacisin Chief Counsel