HomeMy WebLinkAbout06-592 YoshJoseph J. Yosh
335 State Street
Larksville, PA 18704 -1015
Dear Mr. Yosh:
ADVICE OF COUNSEL
October 18, 2006
06 -592
This responds to your letter of September 21, 2006, 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 in an unpaid volunteer status as an
assistant to the borough's code enforcement officer.
Facts: As a Council Member for Larksville Borough (the "Borough "), you ask
whether the Ethics Act would prohibit you from simultaneously serving in an unpaid
volunteer status as an assistant to the Borough Code Enforcement Officer. You state that
the Code Enforcement Officer is duly authorized by the municipality to administer and
enforce applicable codes and ordinances of the municipality. You state that the Borough
Solicitor has informed you that because a Borough Council Member enacts ordinances,
you would not be in a position to enforce Borough ordinances. However, it is your view
that as a Borough Council Member who enacts legislation, you would be able to ensure the
enforcement of such legislation. You assert that in any event, you would only be enforcing
ordinances that already exist. You state that if a conflict of interest would arise, you could
abstain from voting on ordinances related to the code and could satisfy the disclosure
requirements of the Ethics Act.
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.
With respect to your characterization of a view expressed by the Borough Solicitor,
it is further initially noted that any such view would involve constitutional /legal issues
Yosh, 06 -592
October 18, 2006
Page 2
beyond the jurisdiction of the State Ethics Commission, which issues could not be
addressed in this advisory. This advisory is necessarily limited to addressing your inquiry
from the perspective of the Ethics Act.
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.
(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
Yosh, 06 -592
October 18, 2006
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.
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.
Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act
requires a public official /public employee with a conflict of interest to abstain and to
publicly disclose the abstention and the reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the minutes or supervisor.
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. In this case, the
applicable statutes to be reviewed include the Borough Code and the Pennsylvania
Construction Code Act, 35 P.S. § 7210.101 et seq.
The Borough Code provides, in pertinent part, as follows:
§ 46104. Appointments; incompatible offices
Unless there is incompatibility in fact, any elective or appointive
officer of the borough shall be eligible to serve on any board,
commission, bureau or other agency created by or for the
borough, or any borough office created or authorized by statute
and may accept appointments thereunder, but no mayor or
member of council shall receive compensation therefor. No
elected borough official of a borough with a population of 3,000
or more may serve as an employe of that borough. Where
there is no incompatibility in fact, and subject to the foregoing
provisions as to compensation, appointees of council may hold
two or more appointive borough offices, but no mayor or
member of council may serve as borough manager or as
secretary or treasurer... Nothing herein contained shall affect
the eligibility of any borough official to hold any other public
office or receive compensation therefor... .
53 P.S. § 46104 (emphasis added).
The Pennsylvania Construction Code Act refers to code enforcement officers as
"code administrators." 35 P.S. § 7210.103. The term "code administrator" includes "[a]
municipal code official, a construction code official, a third -part agency or the Department
of Labor and Industry." Id. The Pennsylvania Construction Code Act provides that a
municipality may: (1) designate an employee to serve as the municipal code official to act
on behalf of the municipality for administration and enforcement; (2) retain one or more
construction code officials or third -party agencies to act on behalf of the municipality for
Yosh, 06 -592
October 18, 2006
Page 4
administration and enforcement; (3) enter into an intermunicipal agreement providing for
joint administration and enforcement; (4) contract with the proper authorities of another
municipality to secure administration and enforcement services; or (5) enter into an
agreement with the Pennsylvania Department of Labor and Industry for plan reviews,
inspections and enforcement as to certain types of structures. 35 P.S. §7210.501(b). The
Pennsylvania Construction Code Act specifically prohibits members of a munipality's
governing board from serving as members of the board of appeals that hears appeals from
decisions of the code administrator. 35 P.S. § 7210.501(c)(1). However, there does not
appear to be any provision in the Pennsylvania Construction Code that would prohibit a
member of a municipality's governing body from serving as the municipality's code
administrator or as the assistant of same.
In considering the aforesaid relevant provisions of the Borough Code and the
Pennsylvania Construction Code Act, there does not appear to be any statutorily - declared
incompatibility that would preclude you from simultaneously serving as a Borough Council
Member and as an assistant to the Borough Code Enforcement Officer where you would
be serving in the latter position in an unpaid volunteer status.
Furthermore, based upon the facts that have been submitted, there does not appear
to be an inherent conflict under Section 1103(a) of the Ethics Act that would preclude your
simultaneous service as a Borough Council Member and as an unpaid volunteer assistant
to the Borough Code Officer. (See, McCain, Opinion 02 -009). Absent a statutorily -
declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act itself
would not preclude you from simultaneously serving in the aforesaid positions, but in each
instance of a conflict of interest, you would be required to abstain and to satisfy the
disclosure requirements of Section 1103(j) as set forth above.
It is emphasized that the propriety of the proposed conduct has only been
addressed under the Ethics Act. This advisory does not address any other areas of
concern, including but not limited to the view you state was expressed by the Borough
Solicitor. It is recommended that you obtain legal advice regarding any other
constitutional /legal restrictions upon your proposed simultaneous service in the aforesaid
positions.
Conclusion: As a Council Member for Larksville Borough ( "Borough "), 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. Subject to the restrictions, conditions and
qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve in the positions of Borough Council Member and assistant to the
Borough Code Enforcement Officer where you would be serving in the latter position as an
unpaid volunteer. Lastly, the propriety of the proposed course of conduct has only been
addressed under the Ethics Act. It is recommended that you obtain legal advice regarding
any other constitutional /legal restrictions upon your proposed simultaneous service in the
aforesaid positions.
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.
Yosh, 06 -592
October 18, 2006
Page 5
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