Loading...
HomeMy WebLinkAbout06-536 YoshJoseph Yosh 335 East State Street Larksville, PA 18704 ADVICE OF COUNSEL March 30, 2006 06 -536 Re: Conflict; Public Official /Employee; Constable; Candidate; Ballot; Election Polls. Dear Mr. Yosh: This responds to your letter of February 28, 2006, 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., would present any prohibition or restrictions upon a constable with regard to working at the election polls when the constable's name appears on the ballot as a candidate for public office or for another office or position such as a committee person. Facts: As an elected constable, you request an advisory from the State Ethics Commission based upon the following submitted facts. You are planning on being a candidate for the Democratic Committee in the May primary election. In the past, you have been asked by your Judge of Elections to be present at the polls on election day. The question you pose is whether the Ethics Act would prohibit you as a constable from working at the election polls when your name appears on the ballot as a candidate for constable or for another office or position such as committee person. You state that some other constables have informed you that they have been engaging in such practice for a long period of time. You further state that if a constable is permitted to work at the polls when the constable's name is on the ballot, but the constable does not do so, then it would appear to you that there may be an issue as to whether the constable is in dereliction of his duty. 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 Yosh, 06 -536 March 30, 2006 Page 2 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. As a Constable, you are a "public official" subject to the provisions of 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 Yosh, 06 -536 March 30, 2006 Page 3 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. 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. In applying the above provisions of the Ethics Act to the instant matter, 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. It is noted that 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. See, e.g., Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka, Order 1277, SullivarOrder 1245, Dovidio, Order 1202 (personal purposes); Habay, Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800 (political purposes). The State Ethics 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; Ferlo, opinion 97 -005. The previous two versions of the Ethics Act, Act 170 of 1978 and Act 9 of 1989, both specifically provided that the Ethics Act was not to be construed so as to prohibit any constable from also being an officer of a political body or political party, and further provided that a constable could hold the office of a county, State or national committee of any political party and could run for and hold any elective office or participate in any election day activities. Act 170 of 1978, Section 10; Act 9 of 1989, Section 10. The current version of the Ethics Act, Chapter 11 of Act 93 of 1998, does not contain such a provision and is silent on these matters. Therefore, this Advice must be limited to providing the following general guidance. If there is no provision in law that would forbid you as a constable from working at the election polls when your name appears on the ballot as a candidate for constable or for another office or position such as committee person, the Ethics Act would permit you to do so. However, assuming that there is no specific authorization in Yosh, 06 -536 March 30, 2006 Page 4 law that would allow you to engage in activities to further your own campaign /election while on duty as a constable, you as a constable could not engage in such activities to further your own campaign /election during the time periods that you would be working as a constable. 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. Conclusion: As a Constable, 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 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. If there is no provision in law that would forbid you as a constable from working at the election polls when your name appears on the ballot as a candidate for constable or for another office or position such as committee person, the Ethics Act would permit you to do so. However, assuming that there is no specific authorization in law that would allow you to engage in activities to further your own campaign /election while on duty as a constable, you as a constable could not engage in such activities to further your own campaign /election during the time periods that you would be working as a constable. 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 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