HomeMy WebLinkAbout07-540Paul Decker
245 Washington Street
Red Hill, PA 18076
Dear Mr. Decker:
ADVICE OF COUNSEL
May 25, 2007
07- 540
This responds to your letter of April 17, 2007, 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 prohibitions or restrictions upon a constable
with regard to simultaneously serving as a non - compensated member of a borough zoning
hearing board.
Facts: You are currently a Constable. You have been appointed to serve on the
Borough of Red Hill ( "Borough ") Zoning Hearing Board. You do not receive compensation
from the Borough in your current position as a Constable. Likewise, as a Zoning Hearing
Board Member, you would not receive compensation from the Borough.
You seek advice as to whether the Ethics Act would prohibit you from serving
simultaneously as Constable and as a Member of the Borough Zoning Hearing Board.
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.
It is further noted that, pursuant to Sections 1107(10) and (11) of the Ethics Act, 65
Pa.C.S. §§ 1107(10), (11), 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
Decker, 07 -540
May 25, 2007
Page 2
advisory opinion. However, to the extent you have inquired as to future conduct, your
inquiry may and shall be addressed.
Constables are officials elected by the public. 13 P.S. § 1, 2. As a Constable, 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. See,
Legree, Order 1225; Igims, Order 091 -S; Hackman, Order 093 -S.
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
Decker, 07 -540
May 25, 2007
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.
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.
The Pennsylvania Municipalities Planning Code provides: "Members of the [zoning
hearing] board shall hold no other elected or appointed office in the municipality, nor shall
any member be an employee of the municipality." 53 P.S. § 10903. Although, on its face,
the aforesaid provision prohibits zoning hearing board members from holding other elected
or appointed offices in the municipality, for purposes of addressing your question under the
Ethics Act, your current position as Constable is not considered a Borough office. See,
Confidential Opinion, 92 -008.
Therefore, you are advised that there does not appear to be any statutorily - declared
incompatibility precluding your proposed simultaneous service as a Constable and non -
compensated Borough Zoning Hearing Board Member.
Turning to the question of conflict of interest, pursuant to Section 1103(a) of the
Ethics Act, a public official is prohibited from using the authority of public office or
confidential information received by holding such a public position for the private pecuniary
benefit of the public official himself, a member of his immediate family, or a business with
which he or a member of his immediate family is associated.
Where simultaneous service would place the public official in a continual state of
conflict, such as where in one position he would be accounting to himself in another
position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion
02 -009). Where an inherent conflict would exist, it would appear to be impossible, as a
practical matter, for the public official to function in the conflicting positions without running
afoul of Section 1103(a).
Absent a statutorily - declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position, but in each instance of a conflict of interest, the individual would
be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set
forth above.
Based upon the facts that have been submitted in this case, there does not appear
to be an inherent conflict that would preclude simultaneous service as Constable and
Zoning Hearing Board Member. Cf., Confidential Opinion, 92 -008, supra. Consequently,
such simultaneous service would be permitted within the parameters of Sections 1103(a)
and 1103(j).
Lastly, the propriety of the proposed conduct has only been addressed under 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. You
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May 25, 2007
Page 4
may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the
positions of Constable and non - compensated Member of the Borough of Red Hill Zoning
Hearing Board, subject to the restrictions, conditions and qualifications set forth above.
Lastly, the propriety of the proposed course of conduct has only been addressed under the
Ethics Act.
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.
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