HomeMy WebLinkAbout04-561 HindmanRandy Hindman
1070 Morgan Road
Bridgeville, PA 15017
ADVICE OF COUNSEL
June 10, 2004
04 -561
Re: Simultaneous Service, Township Building Inspector and Township Supervisor.
Dear Mr. Hindman:
This responds to your letter of May 5, 2004, by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Ha.GS. § 1101 et seq., imposes any prohibition or restrictions upon a township building
inspector from simultaneously serving as a township supervisor.
Facts: You are a building inspector certified by the Pennsylvania Department of
Labor and Industry and the International Code Council. You state that you were hired
as a salaried building inspector for Cecil Township ( "Township "), a Township of the
Second Class. The Township, which is governed by a three - member Board of
Supervisors, has a township manager, zoning office, public works director, code
enforcement officer, building inspector, and a few administrative assistants.
Certain interests have led you to inquire as to your eligibility to run for the
position of Township Supervisor. You ask whether you may, if elected, maintain your
current salaried position as Township Building Inspector.
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 IDased
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.
As the Township Building Inspector, you are a "public employee" as that term is
defined in the Ethics Act and hence, ou are subject to the provisions of the Ethics Act.
65 Pa.C.S. §1102; 51 Pa. Code §11.1. If elected to the position of Township
Supervisor, you would, upon assuming office, be a "public official' subject to the Ethics
Act.
Section 1103(a) of the Ethics Act provides:
Hindman 04 -561
June 10, 2004
Page 2
§ 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 that pertain 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 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 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. Thus, as a Township Supervisor, you would have a
conflict and could not participate in matters regarding the compensated position of
Building Inspector. For example, you could not vote to set or increase your own salary
as a Building Inspector or participate in any matter concerning your conduct or duties as
a Building Inspector. In each instance of a conflict of interest, you would be required to
abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics
Act.
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
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June 10, 2004
Page 3
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 wherein you state
that you were hired as a Building Inspector, which is factually assumed to be a position
of employment rather than an appointed position, there does not appear to be an
inherent conflict that would preclude simultaneous service as a township building
inspector and a township supervisor. Consequently, such simultaneous service would
be permitted within the parameters of Sections 1103(a) and 1103(j).
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Conclusion: As the Building Inspector for Cecil Township ( "Township "), you are
a "public employee" as that term is defined under the Ethics Act, and hence you are
subject to the provisions of the Ethics Act. If elected to the position of Township
Supervisor, you would, upon assuming office, be a "public official' subject to the Ethics
Act. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve
in the positions of Township Building Inspector and Township Supervisor. However, as
a Township Supervisor, you would have a conflict and could not participate in matters
regarding the compensated position of Building Inspector. For example, you could not
vote to set or increase your own salary as a Building Inspector, or participate in any
matter concerning your conduct or duties as a Building Inspector. In each instance of a
conflict of interest, you would be required to abstain and to fully satisfy the disclosure
requirements of Section 1103(j) 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), 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