HomeMy WebLinkAbout03-558 MaherJames F. Maher, Assistant Counsel
Pennsylvania Liquor Control Board
Office of Chief Counsel
Room 401, Northwest Office Building
Harrisburg, PA 17124 -0001
Dear Mr. Maher:
ADVICE OF COUNSEL
June 13, 2003
03 -558
Re: Public Official; Simultaneous Service; Borough Tax Collector and Pennsylvania Liquor
Control Board Intermittent Liquor Store Clerk.
This responds to your letter of May 13, 2003, by which you requested advice from the
State Ethics Commission.
Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. § 1101 et seq., an elected borough tax collector may continue to serve in such
position while simultaneously being employed by the Pennsylvania Liquor Control Board as an
Intermittent Liquor Store Clerk.
Facts: At the direction of the Pennsylvania Liquor Control Board ( "PLCB "), you request
ardVisory from the State Ethics Commission regarding PLCB employee Albert S. Renn
( "Renn "). Renn is employed by the PLCB as an Intermittent Liquor Store Clerk.
In the fall of 2001, prior to beginning employment with the PLCB, Renn was elected as
a Tax Collector for Riverside Borough. Having commenced employment with the PLCB, Renn
has requested approval to simultaneously serve as both an Intermittent Liquor Store Clerk for
the PLCB and as a Tax Collector for Riverside Borough. You note that at the present time,
Renn does not have established office hours as a Tax Collector but is available by
appointment.
Based upon the submitted facts, you request an advisory as to whether, pursuant to
the Ethics Act, Renn may simultaneously serve in the aforesaid positions.
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 that the requestor has submitted. In issuing the advisory based upon the facts that
the requestor 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
Maher -Renn, 03 -558
June 13, 2003
Page 2
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics
Act, an opinion /advice may be given only as to prospective (future) conduct. To the extent
you have inquired as to conduct that has already occurred, such past conduct may not be
addressed in the context of an advisory opinion. However, to the extent you have inquired as
to future conduct — specifically, Renn's future simultaneous service in the positions in
question —your inquiry may, and shall be addressed.
As a Tax Collector for Riverside Borough, Renn is a ublic official subject to the
provisions of the Ethics Act. 65 Pa.C.S. 1102; 51 Pa. Code 11.1. Renn's status as an
Intermittent Liquor Store Clerk for the Pennsylvania Liquor ontrol Board need not be
determined for purposes of applying the Ethics Act to your inquiry.
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
Maher -Renn, 03 -558
June 13, 2003
Page 3
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.
"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.
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 the State Ethics
Commission does not have the express statutory jurisdiction to interpret such other laws, it
may review them in order to determine whether, under the Ethics Act, a conflict exists based
upon the statutory incompatibility. King, 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.
There does not appear to be any statutorily declared incompatibility precluding
simultaneous service in the positions in question while Renn completes his current term of
office as a Riverside Borough Tax Collector. The Civil Service Act, 71 P.S. § 741.1, et seq.,
does restrict political activities by employees of the PLCB (See, 47 P.S. § 3-302; 71 P.S. §§
741.3(d)(3), 741.905b)). Violations of the political activity restrictions of the Civil Service Act
may result in removal from the employment position. 71 P.S. § 741.905b(f). However, there
are exceptions to such restrictions that, under certain circumstances, expressly permit an
employee elected to public office while not active in the classified service to finish out that term
of office. 4 Pa. Code § 103.11(b). It is recommended that you obtain legal advice regarding
the restrictions imposed upon Renn's proposed activities by the Civil Service Act.
Turning to the question of conflict of interest, pursuant to Section 1103(a) of the Ethics
Act, 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, a member of his
immediate family, or a business with which he or a member of his immediate family is
associated.
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, Johnson,
Opinion 86 -004). 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).
Maher -Renn, 03 -558
June 13, 2003
Page 4
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 position, but in each instance of a conflict of interest, the individual would be required
to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above.
In this case, based upon the facts that have been submitted, there does not appear to
be an inherent conflict under the Ethics Act that would preclude simultaneous service in the
positions in question.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As a Tax Collector for Riverside Borough, Albert S. Renn ( "Renn ") 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. Renn may, consistent with Section 1103(a) of the Ethics
Act, simultaneously serve in the positions of Intermittent Liquor Store Clerk for the
Pennsylvania Liquor Control Board ( "PLCB and Riverside Borough Tax Collector while
completing his current term of office as Tax Collector, 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 Act.
Pursuant to Section 1107(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, 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