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HomeMy WebLinkAbout03-003 ConfidentialOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael J. Healey DATE DECIDED: April 4, 2003 DATE MAILED: April 18, 2003 03 -003 Re: Simultaneous Service; Member, Commonwealth Board A and Commonwealth Board B. This Opinion is issued in response to your letters of February 25, 2003, and February 28, 2003, by which you requested a confidential advisory from the State Ethics Commission. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 F'a.C.S. § 1101 et seq., imposes any prohibition or restrictions upon a Member of Commonwealth Board A with regard to simultaneously serving as a Member of Commonwealth Board B. II. FACTUAL BASIS FOR DETERMINATION: As Chief Counsel to Commonwealth Board A, you request a confidential advisory on behalf of one of the Members of Commonwealth Board A. The Member has been asked to serve on Commonwealth Board B. Institution C is part of Commonwealth Agency D. You cite section [number] of Code E, [cite], as prohibiting Members of Commonwealth Board A from holding any other Commonwealth office. You state that there does not appear to be any decision under this section interpreting the term "office" in this context. Based upon the above, you request a confidential advisory from this Commission as to whether the Member on whose behalf you have inquired would be permitted under the Ethics Act to simultaneously serve in the aforesaid positions. By letter dated March 11, 2003, you were notified of the date, time and location of the executive meeting at which your request would be considered. Confidential Opinion 03 -003 April 18, 2003 Page 2 III. 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, this Commission does not engage in an 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 a Member of Commonwealth Board A, the individual on whose behalf you have inquired is a "public official" subject to the provisions of the Ethics Act. [Order cite]. If appointed a Member of Commonwealth Board B, the individual on whose behalf you have inquired would be a "public official" subject to the Ethics Act in that capacity as well. [Opinion cite]. 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 that pertain 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 subclass consisting of an industry, occupation or other group which includes the f 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. Confidential Opinion 03 -003 April 18, 2003 Page 3 In applying the above provisions of the Ethics Act 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 this Commission does not have the express statutory jurisdiction to interpret such other laws, we may review the Ethics Act to determine that a conflict exists based upon a 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. This 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. In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of Code E must be reviewed. Section [number] of Code E, [cite], provides, in pertinent part, as follows: [quote] [cite]. On its face, the above provision appears to forbid simultaneous service in the positions in question. Any salary (see, [cite]) or other financial gain or pecuniary benefit that the Member on whose behalf you have inquired 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. Therefore, you are advised that simultaneous service in the positions of Member of Commonwealth Board A and Member of Commonwealth Board B would be contrary to Section 1103(a) of the Ethics Act 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. IV. CONCLUSION: A Member of Commonwealth Board A is a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1101 et seq. Simultaneous service in the positions of Member of Commonwealth Board A and Member of Commonwealth Board B would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received as to service in either position. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Confidential Opinion 03 -003 April 18, 2003 Page 4 Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair