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HomeMy WebLinkAbout07-516 WEISSAnn Thornburg Weiss 1100 Donna Drive Fort Washington, PA 19034 Dear Ms. Weiss: 65 Pa.C.S. § 1103(a). ADVICE OF COUNSEL March 14, 2007 07 -516 This responds to your letter of February 8, 2007, 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 impose any prohibition or restrictions upon a township commissioner with regard to simultaneously serving as a county clerk of courts. Facts: In November 2005, you were elected to a second four -year term as a C ommissioner representing Ward 2 of Upper Dublin Township ( "Township ") in Montgomery County. You intend to seek election to the office of Clerk of Courts of Montgomery County in the 2007 election cycle. You ask whether the Ethics Act would impose any prohibition or restrictions upon you with regard to simultaneously serving as a Township Commissioner and as the Clerk of Courts of Montgomery County. 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 Township Commissioner, you are a "public official" subject to the provisions of the Ethics Act. 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. Weiss, 07 -516 March 14, 2007 Page 2 The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: 16 P.S. § 402(a). § 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 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 following provision of the County Code must be reviewed: § 402. Incompatible offices. (a) No elected county officer or county solicitor shall, at the same time, serve as a member of the legislative body of any city, borough, town or township of any class, nor as treasurer or tax collector of any city, borough, incorporated town or township, nor as school director of any school district, nor as a member of any board of health. Weiss, 07 -516 March 14, 2007 Page 3 The above appears to forbid simultaneous service in the positions in question. Any financial gain or pecuniary benefit that you would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. King, Opinion 85 -025. Therefore, you are advised that you may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Township Commissioner and Clerk of Courts of Montgomery County to the extent you would receive compensation in either position. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As a Commissioner for Upper Dublin Township ( "Township ") in Montgomery County, 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. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Township Commissioner and Clerk of Courts of Montgomery County to the extent you would receive compensation in either position. 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, Robin M. Hittie Chief Counsel