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Home My WebLink About04-583 RobatzenStephen A. Robatzen 36046 Lake Road Union City, PA 16438 Dear Mr. Robatzen: ADVICE OF COUNSEL August 10, 2004 04 -583 Re: Simultaneous Service, Township Supervisor and Vice Chair of the Township Recreation Board. This responds to your letter of July 9, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., imposes any prohibition or restrictions upon a township supervisor from simultaneously serving as vice chair of the township recreation board. Facts: You were recently appointed to the position of Supervisor for Bloomfield Township ( "Township "), a Township of the Second Class. In addition to serving as a Township Supervisor, you also serve as Vice Chair of the Bloomfield Township Recreation Board ( "Recreation Board "). Your service on the Recreation Board predates your appointment as Township Supervisor. You state that your term expires in December 2005, but you do not specify whether you are referring to your term as Township Supervisor or your term as a Member of the Recreation Board. You state that you have been told that now that you have been appointed as a Township Supervisor, you must run for election next year and must resign from the Recreation Board. You ask whether you must immediately resign from the Recreation Board or whether you may finish out your term or at least serve the remainder of the year. 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. Robatzen, 04 -583 August 10, 2004 Page 2 As a Township Supervisor, 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. Section 1103(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 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. Although the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Act to determine that a conflict exists based upon the statutory incompatibility. King, Opinion No. 85 -025. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of 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 same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. Robatzen, 04 -583 August 10, 2004 Page 3 In this case, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the Second Class Township Code must be reviewed: § 65403 Supervisors (b) Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position. Nothing in this subsection shall prohibit a supervisor from being a member of a township planning commission created under the act of July 31, 1968 (P.L. 805, No. 247), known as the "Pennsylvania Municipalities Planning Code." 53 P.S. § 65403(b). Assuming that your position on the Recreation Board is an appointive township position, the above would appear to forbid simultaneous service in the positions in question. Any financial gain or pecuniary benefit that you would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. King, Opinion 85 -025. Therefore, simultaneous service in the positions of Township Supervisor and Member of the Recreation Board would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. As to your specific question of whether you must immediately resign from the Recreation Board or whether you may complete your term or at least serve the remainder of the year, such is beyond the jurisdiction of the State Ethics Commission. However, you are advised that because simultaneous service in the positions of Township Supervisor and Recreation Board Member is statutorily forbidden (assuming your position on the Recreation Board is an appointive township position), if you would continue to serve in these positions and receive compensation therefore, you would run afoul of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As a Supervisor for Bloomfield Township ( "Township "), you are a "public official" subject to the provisions of the Ethics Act. Assuming your position on the Bloomfield Township Recreation Board ( "Recreation Board ") is an appointive township position, you may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Township Supervisor and Recreation Board Vice Chairperson. 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. Robatzen, 04 -583 August 10, 2004 Page 4 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