HomeMy WebLinkAbout05-520 MunzBrenda G. Munz
Assistant Clerk, County of Cameron
County of Cameron Court House
20 East Fifth Street
Emporium, PA 15834
Dear Ms. Munz:
ADVICE OF COUNSEL
March 16, 2005
05 -520
Re: Conflict; Public Official /Employee; Assistant Clerk; Office of County Commissioners;
Candidate for Prothonotary.
This responds to your letters of January 31, 2005, and February 10, 2005, 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., presents any prohibition or restrictions upon an assistant clerk
in a county commissioner's office as to seeking election to the office of the prothonotary.
Facts: As Assistant Clerk in the Office of the Commissioners in the County of
ameron, you seek an advisory from the State Ethics Commission based upon the
following submitted facts.
The County of Cameron ( "County ") is an Eighth Class County with a population
of approximately 5974. The chain of command in the Office of the Commissioners is as
follows: (1) Three Commissioners; (2) Chief Clerk; and (3) Assistant Clerk. The position
of Assistant Clerk is a non -civil service position. You have submitted a copy of your job
description, which is incorporated herein by reference.
Per your job description, your responsibilities include, inter alia, processing
payroll; assembling and updating personnel files; balancing the general ledger; filing
bank statements; recording new voter registrations and changes to existing registrants;
completing and providing bi- monthly voter reports to the Department of State;
processing all absentee ballots for elections; completing canvassing form for display in
office; preparing the agenda, minutes and treasurer's report for Planning Commission
meetings; ordering office supplies; assisting auditors with audits; and providing
assistance to all departments when needed.
Munz, 05 -520
March 16, 2005
Page 2
You have decided to run for the Office of Prothonotary. You will be starting your
campaign on February 15, 2005. If elected Prothonotary, you will resign from your
position as Assistant Clerk.
You state that during your campaign, you may be questioned about using your
current position to alter or fraudulently add records for your benefit; however, you offer
your assurance that you will not engage in such conduct. You state that SURE, the
system that your office currently utilizes, tracks all changes, additions and /or deletions
and that you have hardcopy paperwork to back up all the above listed activities through
the Department of State, Department of Health and the citizens themselves.
You ask whether you would have a conflict of interest in running for the Office of
Prothonotary given your job duties as Assistant Clerk.
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 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 not
been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts.
As Assistant Clerk in the Office of the County Commissioners, you are a public
employee as that term is defined in the Ethics Act, and hence you are subject to the
provisions of that Act.
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 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.
Munz, 05 -520
March 16, 2005
Page 3
65 Pa.C.S. § 1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /employee anything of monetary value and no public
official /employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /employee
would be influenced thereby. Reference is made to these provisions of the law not to
imply that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 1103(j) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(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(j).
In each instance of a conflict, Section 1103(j) requires the public official/
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes or supervisor.
In the event that the required abstention results in the inability of the
governmental body to take action because a majority is unattainable due to the
abstention(s) from conflict under the Ethics Act, then voting is permissible provided the
disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005.
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, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
In applying Section 1103(a) of the Ethics Act to your inquiry, it is noted that the
use of government staff, time, equipment, facilities, or property for non - governmental
Munz, 05 -520
March 16, 2005
Page 4
purposes—including business, personal, or political purposes —is generally prohibited
and may form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.q.,
Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka,
O rder 1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay,
Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800
(political purposes). This Commission has long held that government offices, facilities,
equipment, and personnel are to be used for governmental purposes and not for
private, business or campaign /re- election activities. See, Smythe, Order 1121;
Rakowsky, Order 943; Eck, Order 787; Freind, supra; Ferlo5Opinion 97 -005.
Assuming you as Assistant Clerk would not use the authority of your public
employment or confidential information to further your campaign /election activities, you
may seek election to the Office of Prothonotary under the Ethics Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the County Code.
Conclusion: As Assistant Clerk in the Office of the Commissioners in the County
of Cameron, you are a public employee subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The use of
government staff, time, equipment, facilities, or property for non - governmental
purposes— including business, personal, or political purposes —is generally prohibited
and may form the basis for a violation of Section 1103(a) of the Ethics Act. Assuming
you as Assistant Clerk would not use the authority of your public employment or
confidential information to further your campaign /election activities, you may seek
election to the Office of Prothonotary under the Ethics Act. Lastly, the propriety of the
proposed 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