HomeMy WebLinkAbout05-559 Del RosarioRoy C. Del Rosario
125 Winterson Drive
Hamburg, PA 19526
ADVICE OF COUNSEL
June 28, 2005
05 -559
Re: Simultaneous Service, Borough Mayor and Constable Elected Within the Borough.
Dear Mr. Del Rosario:
This responds to your letter of May 29, 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., imposes any prohibition or restrictions upon a mayor of a borough
from simultaneously serving as the constable elected within the borough.
Facts: You currently serve as Mayor of the Borough of Hamburg ( "Borough ") and
Constable elected within the Borough. You state that a citizen in the Borough has a
concern that you are transgressing the Ethics Act by simultaneously serving in both
positions. You further state that during a recent article in the Reading Eagle and Reading
Times, an attorney from the State Ethics Commission was quoted as saying that there was
no conflict in holding both offices simultaneously.
You maintain that you keep both offices separate. However, a contention has been
made that as Mayor, you can order the police to arrest people thereby generating revenue
for yourself as Constable. You state that you have offered your reassurance that as
Mayor, you cannot give such an order and that as a Constable, you receive your assigned
duties from the Magisterial District Judge's Office.
Based upon the foregoing facts, you request an advisory as to whether you may
continue to simultaneously serve as Mayor of the Borough and Constable elected within
the Borough.
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
Del Rosario, 05 -559
June 28, 2005
Page 2
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 Mayor of the Borough of Hamburg ( "Borough "), 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. As a Constable, you are also a "public
official" subject to the Ethics Act.
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
Del Rosario, 05 -559
June 28, 2005
Page 3
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 precluding simultaneous service in the
positions in question. See, Confidential Opinion, 92 -008.
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.
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,
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). Since you have factually
stated that you cannot order arrests so as to give business to yourself as a Constable, no
conflict could arise in that regard.
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 that have been submitted, there does not appear
to be an inherent conflict that would preclude simultaneous service as Mayor of the
Borough and Constable elected within the Borough. Consequently, such simultaneous
service would be permitted within the parameters of Sections 1103(a) and 1103(j). See,
Confidential Opinion, 92 -008.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As Mayor of the Borough of Hamburg ( "Borough "), you are a "public official"
as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. As a Constable, you are also 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 Mayor of the Borough and Constable elected within the Borough, subject to
the restrictions, conditions and qualifications set forth above. Lastly, the propriety of the
proposed course of conduct has only been addressed under the Ethics Act.
Del Rosario, 05 -559
June 28, 2005
Page 4
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 requester 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