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Home My WebLink About23-503 Thompson 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 26, 2023 To the Requester: Andrew J. Thompson 23-503 Dear Mr. Thompson: This responds to your letter dated December 19, 2022, received December 27, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving asa Constable with regard to simultaneously being employed as a police officer with the U.S. Department of the Interior, Bureau of Indian Affairs. Brief Answer: NO. The Ethics Act would not prohibit the individual from simultaneously serving as a Constable and being employed as a police officer with the U.S. Department of the Interior, Bureau of Indian Affairs. Facts: You request an advisory from the Commission based upon the following submitted facts. In November 2021, you were elected as a Constable in Penn Township, which is located in Westmoreland County, Pennsylvania. Your term of office as a Constable ends on December 31, 2027. On October 26, 2022, you accepted a tentative offer from the U.S. Department of the Interior, Bureau of Indian Affairs, for employmentas a police officer. On November 4, 2022, you received an advisory opinion from Erica S. Hamrick, Deputy Chief of the Hatch Act Unit of the Thompson, 23-503 January 26, 2023 Page 2 U.S. Office of Special Counsel, in response to your request for guidance as to whether the Hatch Act, 5 U.S.C. §§ 7321-7326, would prohibit you from holding office as a Constable while working for the Bureau of Indian Affairs. In the advisory opinion, Ms. Hamrick stated that although the Hatch Act would not prohibit you from continuing to serve as a Constable for your current term of office while employed with the Bureau of Indian Affairs, if the office of Constable is a partisan political office, the Hatch Act would prohibit you from running for reelection as a Constable while employed with the Bureau of Indian Affairs. You note that Title 44, Part IV, Chapter 71, Subchapter D of the Pennsylvania Consolidated Statutes, pertaining to Constables and conflicts, only prohibits a Constable from holding office as a magisterial district judge and from accepting certain fees if employed as a police officer. The question that is presented by your advisory request is whether the Ethics Act would prohibit you from continuing to serve as a Constable while you would be employed as a police officer with the Bureau of Indian Affairs. 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 Thompson, 23-503 January 26, 2023 Page 3 impact or which affects to the same degree a class consisting of the general public or a subclass consistingof 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” or the “class/subclass exclusion”), 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 employeehimself, 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. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Constable, you are a public official subjectto the provisions of the Ethics Act. 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. There does not appear to be any statutorily-declared incompatibility that would preclude you from simultaneously serving as a Constable and being employed as a police officer with the Bureau of Indian Affairs. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one Thompson, 23-503 January 26, 2023 Page 4 position. However, in each instance of a conflict of interest, the individual would be required to abstain from participation. In this case, based uponthe facts that have been submitted, there does not appear to be an inherent conflict that would preclude you from simultaneously serving as a Constable and being employed as a police officer with the Bureau of Indian Affairs. Consequently, such simultaneous serviceand employmentwould be permitted within the parameters of Section 1103(a)of the Ethics Act. 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 receivedat 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, Bridget K. Guilfoyle Chief Counsel