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Home My WebLink About07-517 BREACHAllen L. Breach 205C Independent St. Catawissa, PA 17820 Dear Mr. Breach: ADVICE OF COUNSEL March 14, 2007 07 -517 This responds to your letter of February 8, 2007, by which you requested an advisory 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 police officer with regard to simultaneously serving as an auditor for a different township that does not employ him but that does contract with his employer for police services. Facts: You are currently employed as a Police Officer with Locust Township in Columbia County. Pursuant to a Joint Municipal Agreement for Law Enforcement Services ( "Agreement "), Locust Township provides police services to Roaring Creek Township, a Second Class Township in Columbia County. You have submitted a copy of the Agreement. You reside in Roaring Creek Township. You are not employed by Roaring Creek Township as a Police Officer and only serve that municipality pursuant to the aforementioned Agreement. You have been asked to fill one of two vacant auditor positions in Roaring Creek Township. You note that the Second Class Township Code provides that the position of police officer is incompatible with the office of auditor. You ask whether the Ethics Act would prohibit or restrict you from accepting an appointment as an Auditor for Roaring Creek Township. 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. Breach, 07 -517 March 14, 2007 Page 2 Preliminarily, it is noted that police officers are generally not considered `` ublic employees" subject to the Ethics Act. 51 Pa.Code § 11.1 ( "public employee ")(v)(A). You have not submitted a job description for your position as a Police Officer for Locust Township. Therefore, there are insufficient facts to enable a conclusive determination as to whether you are a public employee subject to the Ethics Act in that position. However, if you would be appointed to serve as an Auditor for Roaring Creek Township, you would be a "public official" as that term is defined in the Ethics Act and hence you would be subject to the provisions of the Ethics Act. See, 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 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 Breach, 07 -517 March 14, 2007 Page 3 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 Second Class Township Code must be reviewed: § 66902. Appointment of police The board of supervisors shall provide for the organization and supervision and determine the number and the compensation of the police officers. The position of police officer is incompatible with the office of supervisor, auditor, tax collector, assessor and manager.... 53 P.S. § 66902. On its face, this provision is not clear as to whether simultaneous service as a police officer and an auditor is prohibited generally or merely within the same township. The State Ethics Commission does not have the statutory jurisdiction to interpret the Second Class Township Code, and research has not revealed any judicial rulings on the question you have posed. Absent such a judicial interpretation, this advisory must necessarily be limited to providing general guidance. If the Second Class Township Code would permit you as a township police officer to simultaneously serve as an auditor for a township that does not employ you, the Ethics Act would likewise permit such simultaneous service because there would be no receipt of a pecuniary benefit that would be unauthorized in law. Conversely, if the Second Class Township Code would prohibit the aforesaid simultaneous service, the simultaneous service would likewise be prohibited by Section 1103(a) of the Ethics Act 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: If you would be appointed to serve as an Auditor for Roaring Creek Township, you would be a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. On its face, Section 66902 of the Second Class Township Code, 53 P.S. § 66902, is not clear as to whether simultaneous service as a police officer and an auditor is prohibited generally or merely within the same township. In the absence of a judicial interpretation of the pertinent provision of the Second Class Township Code, this advisory must necessarily be limited to providing general guidance. If the Second Class Township Code would permit you as a township police officer to simultaneously serve as an auditor for a township that does not employ you, the Ethics Act would likewise permit such simultaneous service because there would be no receipt of a pecuniary benefit that would be unauthorized in law. Conversely, if the Second Class Township Code would prohibit the aforesaid simultaneous service, the simultaneous service would likewise be prohibited by Section 1103(a) of the Ethics Act 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 Breach, 07 -517 March 14, 2007 Page 4 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