HomeMy WebLinkAbout05-610 Dufton ClarkHelen Dufton Clark
720 Oak Street
Indiana, PA 15701
ADVICE OF COUNSEL
December 28, 2005
Re: Simultaneous Service, County Auditor and Substitute Teacher.
Dear Ms. Clark:
05 -610
This responds to your letter we received on November 28, 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., imposes any prohibition or restrictions upon a county auditor
from simultaneously being employed as a substitute teacher in a school district.
Facts: You are an Auditor for Indiana County ( "County "). As the County Auditor,
you audit various aspects of County government and local tax collectors. You state that
you do not audit school districts.
Prior to being elected as the County Auditor, you were a substitute teacher. In
light of the fact that the position of County Auditor is not a full -time position, you would
like to serve as a substitute teacher during most of the year.
You state that you are aware that the County Code may prohibit you from
simultaneously serving as a County Auditor and a substitute teacher. However, it is
your belief that you may simultaneously serve in both positions because as a County
Auditor, you are not involved with any school districts. You note that the County is not a
member of the school district since the County has numerous school districts and does
not have a county wide school district.
You seek an advisory as to whether you would have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to simultaneous serving as a County
Auditor and a substitute teacher.
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.
Clark, 05 -610
December 28, 2005
Page 2
As the County Auditor, 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.
In this case, in order to determine whether a particular pecuniary benefit or
financial gain is prohibited by law, the provisions of the County Code must be reviewed:
Clark, 05 -610
December 28, 2005
Page 3
§ 702. Eligibility
(a) No person shall be eligible to the office of county auditor
who, within two years, shall have been treasurer of the
county.
(b) No person holding the office of county auditor shall at the
same time hold or be employed in any office of the county,
the county institution district, any school district, any board of
health or any municipality authority of which the county is a
member.
16 P.S § 702(b).
The above appears to forbid simultaneous service in the positions in question.
Any financial gain or pecuniary benefit that the public official /public employee 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 County Auditor and substitute teacher for a school district
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.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Conclusion: As an Auditor for Indiana County ( "County "), you are a "public official"
subject to the provisions of the Ethics Act. You may not, consistent with Section
1103(a) of the Ethics Act, simultaneously serve in the positions of County Auditor and
substitute teacher for a school district. 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 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