HomeMy WebLinkAbout03-541 DertingerCharles M. Dertinger
8541 Delaware Drive
Bangor, PA 18013
ADVICE OF COUNSEL
April 18, 2003
03 -541
Re: Simultaneous Service, Chairman; County Election Commission and Member of
County Council; County Home Rule Charter; Candidate; Leave of Absence.
Dear Mr. Dertinger:
This responds to your letter of March 16, 2003, by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., imposes any prohibition or restrictions upon a chairman of a
county election commission with respect to running for the position of or simultaneously
serving as a member of a county council.
Facts: You are presently the Chairman of the Northampton County Election
Commission ( "Commission "). You are also a candidate for the Northampton County
Council representing the 4 th District. You state that in the interest of public confidence, you
have taken a temporary leave of absence effective March 11, 2003, until the day after the
Municipal Primary Election is certified. You intend to take a temporary leave of absence
again during the General Election.
Given the foregoing, you pose the following two inquiries:
1. Whether you would transgress the Ethics Act if you would continue to hold
the position of Chairman of the Commission during the remainder of the year if you would
take such leaves of absence and;
2. If the Ethics Act would not preclude you from continuing to hold the position
of Chairman of the Commission, whether you must take such leaves of absence in that
Northampton is a county governed by a Home Rule Charter.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based
upon the facts which the requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not engage in an
Dertinger, 03 -541
April 18, 2003
Page 2
independent investigation of the facts, nor does it speculate as to facts which have not
been submitted. It is the burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As Chairman of the Northampton County Election Commission, you are a "public
official" as that term is defined in the Ethics Act and hence you are subject to the
provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted Activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
(j) Voting conflict. —Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or by
any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed with
the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a matter
before it because the number of members of the body required
to abstain from voting under the provisions of this section
makes the majority or other legally required vote of approval
unattainable, then such members shall be permitted to vote if
disclosures are made as otherwise provided herein. In the
case of a three - member governing body of a political
subdivision, where one member has abstained from voting as
a result of a conflict of interest and the remaining two members
of the governing body have cast opposing votes, the member
who has abstained shall be permitted to vote to break the tie
vote if disclosure is made as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), (j).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined 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
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April 18, 2003
Page 3
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.
65 Pa. C. S. § 1102.
Although you have posed your two questions under the Ethics Act, it would appear
that you are really seeking guidance as to your conduct under the Northampton County
Home Rule Charter. In that the State Ethics Commission has no jurisdiction to administer
or enforce any law other than the Ethics Act, this advice cannot address issues of whether
you must take a leave of absence under the Northampton County Home Rule Charter.
This advice will only address your conduct in terms of conflicts both as a candidate and as
a Member of the Northampton County Council, if elected, with respect to your position of
Chairman of the Commission.
In applying the above provisions of the Ethics Act to the questions you have posed,
you are advised that pursuant to Section 1103(a) of the Ethics Act, as Chairman of the
Commission, you would have a conflict as to your own candidacy for County Council. If
and to the extent you would be unable to segregate your duties as Chairman of the
Commission as to your own candidacy, it would be necessary for you to remove yourself
from such duties during your own candidacy.
If you would win the election for County Council, the question would arise as to
whether you could simultaneously serve in the positions of County Council Member and
Chairman of the Commission. In this regard, it is noted that the General Assembly has the
constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2.
Although the State Ethics Commission does not have the express statutory
jurisdiction to interpret such other laws, it may review such other laws to determine that a
conflict exists based upon the statutory incompatibility. Kinq, Opinion No. 85 -025.
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. The Commission has determined that if a particular
statutory enactment prohibits an official from receiving a particular pecuniary benefit or
financial gain, then that official's receipt of same, through the authority of public office, is
unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. As the
Commission stated in Confidential Opinion, 03 -003, Any salary ... or other financial gain
or pecuniary benefit that the Member...would receive from either position while
simultaneously holding both of these incompatible positions would be a gain other than
compensation provided for by law and would be prohibited under Section 1103(a) of the
Ethics Act. Kinq, Opinion 85- 025." Confidential Opinion, 03 -003.
In this case, in order to determine whether a particular pecuniary benefit or financial
gain is prohibited by law, the provisions of the Northampton County Home Rule Charter
must be reviewed:
Section 1.1 -101 of the Northampton County Home Rule Charter provides as follows:
§ 1.1 -101. Elected Officials.
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April 18, 2003
Page 4
The elected officials shall be the nine (9) members of
the County Council, the County Executive, the Controller, and
the District Attorney.
348 Pa. Code § 1.1 -101.
Sections 1.10 -1001 and 1.10 -1002 of the Northampton County Home Rule Charter
provide in pertinent part as follows:
§ 1.10 -1001. Establishment.
(a) By Ordinance. The County Council shall have the
power by ordinance to establish any authority, board, or
commission and to abolish any authority, board, or commission
not established by Subsection (b).
(b) By Charter. The following boards and commissions are
hereby established:
(1) Personnel Appeals Board;
(2) Revenue Appeals Board;
(3) Election Commission;
(4) Personnel Commission.
§ 1.10 -1002. Membership.
(a) Appointments. The County Executive shall have the
power to appoint the members of authorities, boards, and
commissions, subject to the confirmation by the county council.
(e) Prohibition. No elected official, officer, or employe and
no member of any other authority, board, or commission shall
be a member of a board or commission established under §
1.10 -1001 (relating to establishment).
(f) Forfeiture of Office. A member of an authority, board, or
commission shall forfeit his office if he at any time during his
term of office:
(2) violates any prohibition prescribed by this
Charter.
348 Pa. Code § § 1.10 -1001; 1.10 -1002.
The above appears to forbid simultaneous service in the positions in question. Any
financial gain or pecuniary benefit that the public official /public employee would receive
while simultaneously holding these positions would be a gain other than compensation
provided for by law. King, Opinion 85 -025. Therefore, simultaneous service in the
positions of Chairman of the Northampton Elections Commission and Member of the
Northampton County Council would be contrary to Section 1103(a) of the Ethics Act to the
extent a pecuniary benefit or financial gain would be received that would be unauthorized
based upon the foregoing incompatibility provision.
Lastly, the propriety of the proposed course of conduct has only been addressed
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April 18, 2003
Page 5
under the Ethics Act.
Conclusion: As Chairman of the Northampton County Election Commission
( "Commission "), you are a "public official" subject to the provisions of the Ethics Act.
Pursuant to Section 1103(a) of the Ethics Act, as Chairman of the Commission, you would
have a conflict as to your own candidacy for the Northampton County Council. If and to
the extent you would be unable to segregate your duties as Chairman of the Commission
as to your own candidacy, it would be necessary for you to remove yourself from such
duties during your own candidacy.
You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously
serve in the positions of Chairman of the Northampton Elections Commission and Member
of the Northampton County Council to the extent a pecuniary benefit or financial gain
would be received as to service in either position.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Pursuant to Section 1107(11), 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 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 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.
Sincerely,
Vincent J. Dopko
Chief Counsel