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Home My WebLink About07-545 EshbaughStephen Yakopec, Jr., Esquire 1725 Fifth Avenue Arnold, PA 15068 ADVICE OF COUNSEL June 13, 2007 07 -545 Dear Mr. Yakopec: This responds to your faxed transmission of May 2, 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 constable with regard to simultaneously serving as a treasurer for a third class city. Facts: You are Solicitor for the City of Lower Burrell ( "City "), a third class city in Westmoreland County ( "County "). You have been authorized by Brian Eshbaugh ("Eshbaugh"), who is currently both the City Controller and a Constable, to request an advisory from the State Ethics Commission on his behalf as to the following. As the elected City Controller, Eshbaugh examines and controls City accounts and files an annual report with the City Council of the audits he performs concerning the disbursement of public funds. Eshbaugh also is a required signator on City checks. The City Controller has no voting power. In the past, Eshbaugh served as an appointed Deputy Constable. He is now an elected Constable. Eshbaugh is currently on the ballot, running unopposed, for the position of City Treasurer. The City Treasurer is required to be a competent accountant for the accounting of and paying over of all monies received by the City. The City Treasurer collects County, City, and school district taxes and all monies received from the City. The City Treasurer is required to sign all City checks. The City Treasurer has no voting power. Based upon the above submitted facts, you pose the following three specific inquiries: 1. Whether the Ethics Act would prohibit or restrict Eshbaugh as an elected Constable from simultaneously serving as the City Controller; Yakopec, 07 -545 June 13, 2007 Page 2 2. Whether the Ethics Act would prohibit or restrict Eshbaugh as an appointed Deputy Constable from simultaneously serving as the City Controller or the City Treasurer; and 3. Whether the Ethics Act would prohibit or restrict Eshbaugh as an elected Constable from simultaneously serving as the City Treasurer. You have proffered your analysis of the legal issues that you have raised. 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 also noted that, pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), an advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an 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. As your first two inquiries relate to conduct that has already occurred, such past conduct may not be addressed in the context of this advisory opinion. However, since your third inquiry relates to future conduct, said inquiry may and shall be addressed. In his dual capacities as an elected Constable and the City Controller, Eshbaugh is 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. 65 Pa.C.S. § 1103(a). 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 Yakopec, 07 -545 June 13, 2007 Page 3 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. 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. 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. There does not appear to be any statutorily- declared incompatibility precluding simultaneous service in the positions of Constable and City Treasurer for a third class city. Furthermore, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude Eshbaugh's simultaneous service as a Constable and the City Treasurer. See, McCain, Opinion 02 -009 (holding that 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). Absent a statutorily- declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act itself would not preclude Eshbaugh from simultaneously serving as Constable and City Treasurer. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: In his dual capacities as an elected Constable and the Controller for the City of Lower Burrell ( "the City "), Brian Eshbaugh ( "Eshbaugh ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg Subject to the restrictions, conditions, and qualifications set forth above, Eshbaugh may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Constable and City Treasurer. 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. Yakopec, 07 -545 June 13, 2007 Page 4 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