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PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
May 24, 2023
To the Requester:
Dustin Weir
23-532
Dear Mr. Weir:
This responds to your email received May 19, 2023, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to theissue
presented below:
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., would impose prohibitions or restrictions upon an individual with regard to
simultaneously serving as a deputy constable and a county sheriff.
Brief Answer: NO. The Ethics Act would not prohibit the individual from simultaneously
serving as a deputy constable and a county sheriff.
Facts:
You are a currently a Deputy Constable. It is anticipated that you will be sworn into office
as the Sheriff of Somerset County (“County”) in 2024. You ask whether the Ethics Act would
permit you to continue to serve as a Deputy Constable while you would be serving as the County
Sheriff.
Discussion:
Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10),
(11), advisories are issued to the requester based upon the facts that the requester has submitted.
In issuing the advisory based upon the facts that the requester has submitted, the Commission does
not engage in an independent investigation of the facts, nor does it speculate as to facts that have
Weir,23-532
May 24, 2023
Page 2
not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant
to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the
requester has truthfully disclosed all material facts.
Section1103(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 related to Section 1103(a) are defined in the Ethics Act 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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or
“conflict of interest” (i.e., the “de minimis exclusion” or the “class/subclass exclusion”), 65
Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public
office or confidential information received by holding such a public position for the private
pecuniary (financial) benefit of the public official/public employee himself, any member of his
immediate family, or a business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official/public employee would be
required to abstain from participation. The abstention requirement would extend to any use of
Weir, 23-532
May 24, 2023
Page 3
authority of office including, but not limited to, discussing, conferring with others, and lobbying
for a particular result. Juliante, Order 809.
Conclusion:
In applying the above provisions of theEthics Act to the instant matter, you are advised as
follows.
As a Deputy Constable, you are a public official subject to the provisions of the Ethics Act.
Upon taking office as the County Sheriff, you would in that capacity also be a public official
subject to the provisions of the Ethics Act.
With regard 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. There does not appear to be any statutorily-declared incompatibility that would
preclude you from simultaneously serving as a Deputy Constable and the County Sheriff.
Turning to the question of conflict of interest, 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, McCain, Opinion 02-009). 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) of the Ethics Act.
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. However, in each instance of a conflict of interest, the individual would be required to
abstain from participation.
In this case, based upon the facts that have been submitted, there does not appear to be an
inherent conflict that would preclude you from simultaneously serving as a Deputy Constable and
the County Sheriff. Consequently, such simultaneous servicewould be permitted within the
parameters of Section 1103(a)of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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.
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May 24, 2023
Page 4
Any such appeal must be in writing and must be actually receivedat 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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel