HomeMy WebLinkAbout02-512 WolfeGeorge P. Wolfe, Esquire
300 Market Street
Johnstown, PA 15901
Re: Simultaneous Service, Solicitor and School Director.
Dear Mr. Wolfe:
ADVICE OF COUNSEL
February 1, 2002
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
02 -512
This responds to your letter of January 2, 2002, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ")
imposes any prohibition or restrictions upon a solicitor for a borough zoning hearing
board from simultaneously serving as a school director.
Facts: You have been the Solicitor for the Westmont Borough Zoning Hearing
Board tor approximately four years. In December of 2001, you were sworn in as an
elected Director of the Westmont Hilltop School Board. You ask whether you would
have a conflict of interest if you would simultaneously serve in these two positions.
Discussion: Assuming that as Solicitor for the Westmont Borough Zoning
Hearing Board, you are retained by - as opposed to being an employee of - Westmont
Borough, you are not a "public official /public employee" as that term is defined in the
Ethics Act, and hence you are not subject to the provisions of the Ethics Act. 65
Pa.C.S. § 1102; 51 Pa. Code § 11.1. See, P.J.S. v. State Ethics Commission, 697
A.2d 286 (Pa. Commw. 1997); and C.P.C. v. State Ethics Commission, 698 A.2d 155
(Pa. Commw. 1997). However, as a Westmont Hilltop School Director, you are a
public official" subject to the provisions of the Ethics Act.
Wolfe 02 -512
February 1, 2002
Page 2
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), 0).
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.
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
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February 1, 2002
Page 3
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 precluding
simultaneous service in the positions in question.
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 Solicitor
for the Westmont Borough Zoning Hearing Board and Director of the Westmont Hilltop
School Board. Consequently, 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: Assuming that as Solicitor for the Westmont Borough Zoning
Hearing Board, you are retained by - as opposed to being an employee of - Westmont
Borough, you are not a "public official /public employee" as that term is defined in the
Ethics Act, and hence you are not subject to the provisions of the Ethics Act. 65
Pa.C.S. § 1102; 51 Pa. Code § 11.1. However, as a Westmont Hilltop School
Director, you are a "public official" subject to the provisions of the Ethics Act. You may,
consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions
of Solicitor for the Westmont Borough Zoning Hearing Board and Director of the
Westmont Hilltop School Board, 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
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February 1, 2002
Page 4
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