HomeMy WebLinkAbout05-536 McConaugheyKaren Sue McConaughey
P.O. Box 44
Rockhill Furnace, PA 17249 -0044
ADVICE OF COUNSEL
April 15, 2005
05 -536
Re: Simultaneous Service, Borough Council Member and Judge of Elections.
Dear Ms. McConaughey:
This responds to your letter of March 16, 2005, 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. § 1101 et seq., would impose any prohibition or restrictions upon a borough
council member with regard to simultaneously serving as a judge of elections.
Facts: You currently serve as a Council Member in the Borough of Rockhill Furnace.
You ask whether you may also run for the position of Judge of Elections.
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 a Borough Council Member, 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.
McConaughey, 05 -536
April 15, 2005
Page 2
(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.
"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 that you have
posed, you are initially advised that the Ethics Act would not prohibit you from running for
the position of Judge of Elections. The Ethics Act does not prohibit a public official /public
employee from seeking another public position. Rather, the Ethics Act prohibits a public
official /public employee from simultaneously holding two positions that are statutorily
McConaughey, 05 -536
April 15, 2005
Page 3
incompatible or that result in an inherent conflict, when the public official /public employee
is compensated for at least one such position.
As for statutory incompatibility, it is noted that the General Assembly has the
constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §
2.
An inherent conflict arises 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. (See, McCain,
Opinion 02 -009). 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 the instant matter, there does not appear to be an inherent conflict as to the
positions of Borough Council Member and Judge of Elections.
As for statutory incompatibility, the Borough Code includes incompatibility
provisions pertaining to Council Members serving in other Borough offices /positions (53
P.S. §§ 45801, 46104), but the Judge of Elections does not appear to be a Borough office.
See, 53 P.S. § 45806; 25 P.S. §§ 2602(g)- (g.1), 2671.
However, there is a legal issue as to whether, as a Borough Council Member, you
would be qualified to serve as Judge of Elections under the following provision of the
Election Code:
§ 2672. Qualifications of election officers
(a) Except as provided in subsection (b), election officers
shall be qualified registered electors of the district in which
they are elected or appointed. No person shall be qualified to
serve as an election officer who shall hold, or shall within two
months have held, any office, appointment or employment in or
under the Government of the United States or of this State or
of any city or county or poor district, of any municipal board,
commission or trust in any city, save only district justices,
notaries public and persons in the militia service of the State;
nor shall any election officer be eligible to any civil office to be
voted for at a primary or election at which he shall serve,
except that of an election officer.
25 P.S. § 2672 (Emphasis added).
On its face, this provision is not clear as to whether the reference to any municipal
board" stands independent of, or is modified by, the language, in any city." The State
Ethics Commission does not have the statutory jurisdiction to interpret the Election Code,
and research has not revealed any judicial interpretation of the language in question.
It is additionally noted that this same provision of the Election Code states that an
election officer is not eligible ". . . to any civil office to be voted for at a primary or election
at which he shall serve, except that of an election officer." 25 P.S. § 2672.
McConaughey, 05 -536
April 15, 2005
Page 4
Based upon the above, this Advice cannot conclusively determine whether you
would be permitted to simultaneously serve as a Borough Council Member and Judge of
Elections.
It is recommended that you seek legal advice as to the applicability of the aforesaid
Election Code provision.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Conclusion: As a Rockhill Borough Council Member, 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. The Ethics Act would not prohibit you from running for the position of Judge
of Elections. Because a legal issue exists under the Election Code, 25 P.S. § 2672, as to
whether as a Borough Council Member, you would be qualified to serve as a Judge of
Elections, this Advice cannot conclusively determine whether you would be permitted to
simultaneously serve as a Borough Council Member and Judge of Elections. The State
Ethics Commission does not have the statutory jurisdiction to interpret the Election Code.
It is recommended that you seek legal advice as to the applicability of the aforesaid
Election Code provision.
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