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HomeMy WebLinkAbout03-573 FrancisDavid E. Francis 712 Park Boulevard Altoona, PA 16601 Dear Mr. Francis: ADVICE OF COUNSEL July 24, 2003 03 -573 Re: Candidate; Simultaneous Service; Auditor employed by the Commonwealth of Pennsylvania, Department of the Auditor General, Bureau of School Audits, and State Representative. This responds to your letter of June 24, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., would impose any prohibition or restrictions upon an Auditor employed by the Commonwealth of Pennsylvania, Department of the Auditor General, Bureau of School Audits, with regard to running for office and, if elected, simultaneously serving as a State Representative. Facts: As an Auditor employed by the Commonwealth of Pennsylvania, rtment of the Auditor General, Bureau of School Audits, you seek an advisory as to whether the Ethics Act would impose any prohibition or restrictions upon you with regard to running for office or simultaneously serving as a State Representative for the Commonwealth of Pennsylvania. Discussion: It is initially noted that pursuant to Sections 1107 (10) and 1107(11) of the i - 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 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 an Auditor employed by the Commonwealth of Pennsylvania, Department of the Auditor General, Bureau of School Audits, you are a "public employee" 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. Francis 03 -573 July 24, 2003 Page 2 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. Q) 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 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 Francis 03 -573 July 24, 2003 Page 3 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 questions that you have posed, you are initially advised that the Ethics Act would not prohibit you from running for the office of State Representative. (You are reminded that as a candidate for State Representative, ou would be required to file your Statement of Financial Interests with both the State Ethics Commission and as an attachment to your petition to appear on the ballot filed with the State Bureau of Elections, in accordance with Section 1104(b)(1) of the Ethics Act, 65 Pa.C.S. § 1104(b)(1)). The Ethics Act does not prohibit a public official /public employee from seeking another public position. Rather, the Ethics Act prohibits a public official /public employee from simultaneously holding two positions that are statutorily incompatible or that result in an inherent conflict, when the public official /public employee is compensated for at least one such position. In considering the question of simultaneous service, 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 the Ethics Act to determine that 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. Additionally, even when there is no statutorily declared incompatibility precluding simultaneous service, if 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). 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, subject to observance of the prohibitions, restrictions and requirements of the Ethics Act. In the instant matter, the following provisions must be reviewed as to your proposed simultaneous service. The Constitution of Pennsylvania provides, in pertinent part: Disqualification to Hold Other Office Section 6. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under this Commonwealth to which a salary, fee or perquisite is attached. No member of Congress or other person holding any office (except of attorney -at -law or in the National Guard or in a reserve component of the armed Francis 03 -573 July 24, 2003 Page 4 forces of the United States) under the United States or this Commonwealth to which a salary, fee or perquisite is attached shall be a member of either House during his continuance in office. PA CONST. art. II, § 6. Additionally, 65 P.S. § 16 provides: 16. Offices of member of Congress and state egislature No senator or representative shall, during the time for which he shall have been elected, be appointed to any civil office under this commonwealth; and no member of Congress or other person holding any office, except of attorney -at -law or in the militia, under the United States or this commonwealth, shall be a member of either House during his continuance in office. They shall receive no other compensation, fees or perquisites of office for their services from any source, nor hold any other office of profit under the United States, this state or any other state. 65 P.S. § 16. The above prohibitions against a state legislator simultaneously holding another "civil office under this Commonwealth" have been narrowly construed to apply only to offices, as opposed to mere positions of employment (Emhardt v. Wilson, 20 Pa. D. & C. 608 (1934); Incompatible Offices, 67 Pa. D. & C.2d 699 (Pa. Dept. of Justice 1974); Employment of Legislators by Works Progress Administration, 29 Pa. D. & C. 574 (Pa. Dept. of Justice 1930), and only at the state level (Woodruff v. Joyce, 291 Pa. 82, 139 A. 742 (1927)). Thus, there does not appear to be any statutorily declared incompatibility precluding simultaneous service in the employment position of Auditor with the Commonwealth of Pennsylvania, Department of the Auditor General, Bureau of School Audits, and the elected position of State Representative. Additionally, the duties of these positions would not place you in an inherent conflict. However, as a practical matter, it would seem to be impossible for you to hold these two positions simultaneously because you would not be able to physically fulfill your duties as an Auditor and State Representative at the same time. In this regard, the Commission has held that a public official /public employee violates the Ethics Act if he receives compensation for submitted hours of public employment when not present on the job. See, Williams, Order 734, where the Commission found that a field inspector for the Department of Labor & Industry (L &I) violated Section 3(a) of the Ethics Act (now Section 1103(a)) when he was paid for working certain hours at L &I at times when he was in fact working as a security guard for a hospital. See also, Holt, Order 1153. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As an Auditor employed by the Commonwealth of Pennsylvania, 'Department of the Auditor General, Bureau of School Audits, you are a "public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1101 et seq. The Ethics Act would not prohibit you from running for office as a S ate Representative. There does not appear to be any statutorily declared incompatibility or inherent conflict precluding simultaneous service in the employment position of Auditor with the Commonwealth of Pennsylvania, Department of the Auditor General, Bureau of School Audits, and the elected position of Francis 03 -573 July 24, 2003 Page 5 State Representative. However, as a practical matter, it would seem to be impossible for you to hold these two positions simultaneously because you would not be able to physically fulfill your duties as an Auditor and State Representative at the same time. 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