HomeMy WebLinkAbout04-538 RitcheyToni A. Ritchey
153 Forbes Way
Box 175
Forbes Road, PA 15633
ADVICE OF COUNSEL
May 3, 2004
04 -538
Re: Simultaneous Service, Borough Secretary/Treasurer and Township Supervisor.
Dear Ms. Ritchey:
This responds to your letter of March 31, 2004, 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.
1 et seq., imposes any prohibition or restrictions upon a borough secretary/ treasurer
rom simultaneously serving as a township supervisor.
Facts: You serve as Secretary/Treasurer for Delmont Borough ( "Borough "). In a
telephone conversation with Commission staff on May 3, 2004, you confirmed that the
position of Borough Secretary/Treasurer is an appointed position. You also volunteered that
you live in Salem Township ("Township").
You are interested in running for the position of Township Supervisor in 2005. Both the
Borough and the Township are located in Westmoreland County and share municipal
boundaries. In addition, both the Borough and Township share a sewage system. You state
that there have been some conflicts in past years.
You ask whether you would have a conflict of interest as to simultaneously serving as
Borough Secretary/Treasurer and Township Supervisor.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the
i Z5 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.
Ritchey, 04 -538
May 3, 2004
Page 2
As Borough Secretary/Treasurer, you are a "public official" 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.
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
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.
Ritchey, 04 -538
May 3, 2004
Page 3
"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.
A conflict exists under the Ethics Act where a pecuniary benefit or financial gain results
from 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 the same, through the authority of public office,
is unauthorized in law and therefore, is contrary to Section 1103(a) of the Ethics Act.
In this case, in order to determine whether simultaneous service in the positions in
question is precluded, the Borough Code, 52 P.S. § 45101 et seq. and the Second Class
Township Code, 52 P.S. § 65101 et seq. must be reviewed.
The Borough Code provides as follows:
§ 45801. Electors only to be eligible; incompatibility
Registered electors of the borough only shall be eligible
to elective borough offices. All elected borough officers shall
reside in the borough from which elected and shall have
resided in the borough continuously for at least one year
immediately before their election. A school director shall not be
eligible to an elective borough office. No individual shall at the
same time hold more than one elective borough office.
53 P.S. § 45801 (emphasis added).
The Second Class Township Code provides as follows:
§ 65401. Township officers to be electors
No person is eligible for the office of supervisor, assessor,
auditor or tax collector in any township unless that person is an
elector of the township.
53 P.S. § 65401.
§ 65403. Supervisors
(c) Supervisors shall reside in the township from which
elected and shall have resided in that township continuously for
at least one year before their election.
53 P.S. § 65403.
Based upon a review of the above quoted provisions, as a practical matter, it would
appear impossible for a borough secretary /treasurer to also serve as a township supervisor
given that both the Borough Code and the Second Class Township Code restrict eligibility as
to holding elected office to the electors of the borough or township, and impose residency
Ritchey, 04 -538
May 3, 2004
Page 4
requirements as a condition to holding such offices. 53 P.S. §§ 45801; 65401; 65403. It is
parenthetically noted that you would not be prohibited from running for the office of Township
Supervisor; however, upon winning the election, the restrictions as to eligibility and residency
under Sections 65401 and 65403 of the Second Class Township Code would apply to you as
a Township Supervisor.
The requirement that a borough officer to be a resident of the borough and a township
supervisor to be a resident of the township is based upon legislative fiat. Because you could
not lawfully serve as a Township Supervisor while also serving as the Borough
Secretary/Treasurer, the resulting impact under the Ethics Act would be that any pecuniary
benefit that you would receive as a result of unlawful service in either of these positions would
be unauthorized in law and therefore a prohibited private pecuniary benefit contrary to Section
1103(a) of the Ethics Act. See Moore, Opinion 04 -004.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As Secretary/Treasurer for Delmont Borough ("Borough"), you are a
"'public official" subject to the provisions of the Public Official and Employee Ethics Act
('Ethics Act "), 65 Pa.C.S. § 1101 et seq. You may not simultaneously serve as borough
secretary /treasurer and township supervisor. Any pecuniary benefit that you would receive as
a result of unlawful service in either of these positions would be unauthorized in law and
therefore a prohibited private pecuniary benefit contrary to Section 1103(a) of the Ethics Act.
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