HomeMy WebLinkAbout03-578 LongDeanna G. Long
P.O. Box 353
Grove Street
Howard, PA 16841
ADVICE OF COUNSEL
July 31, 2003
03 -578
Re: Simultaneous Service, County Nursing Home Employee and Borough Auditor.
Dear Ms. Long:
This responds to your letter of July 11, 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.
77 et seq., imposes any prohibition or restrictions upon a county employee from
simultaneously serving as a borough auditor.
Facts: You are running for Howard Borough Auditor (Auditor). You work for the Centre
rinty, Centre Crest Nursing Home in the Housekeeping Department. You have been told
that you may not run for office (borough auditor) and work for Centre County.
You ask whether you may serve as Auditor while working for Centre County, Centre
Crest Nursing Home.
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 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.
If elected as an Auditor for Howard Borough, you would be a "public official" as that
term is defined in the Ethics Act and hence you would be 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:
Long, 03 -578
July31, 2003
Page 2
65 Pa.C.S. § 1102.
§ 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 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.
Long, 03 -578
July31, 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. Incompatibility must be reviewed
both from the perspective of being a borough auditor and also as an employee of the county
nursing home. The Borough Code does not appear to preclude such simultaneous service.
As to your county employment, since there are varied incompatibility provisions, depending
upon the respective class of the county, and since you have not indicated the class of the
county in which you reside, only a general response may be made. If the applicable (Class)
County Code does not preclude such service, then you may simultaneously serve in both
positions under the Ethics 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).
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 which have been submitted, there does not appear to
be an inherent conflict that would preclude simultaneous service as an employee of the county
nursing home and Auditor. Subject to the qualifications noted above, such simultaneous
service would be permitted within the parameters of Sections 1103(a) and 1103(j).
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: If elected Auditor of Howard Borough, you would be a "public official"
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. Subject to the restrictions, conditions and qualifications set forth
above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as
an employee for the Centre Crest Nursing Home and Howard Borough Auditor. 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
Lonq, 03 -578
July 31 2003
Page 4
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