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HomeMy WebLinkAbout07-562 URICKRichard Urick, Esquire McMillen, Urick, Tocci, Fouse & Jones 2131 Brodhead Road Aliquippa, PA 15001 Dear Mr. Urick: ADVICE OF COUNSEL July 31, 2007 07 -562 This responds to your letter dated June 22, 2007, and your faxed transmission received July 30, 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 present any prohibitions or restrictions upon a township commissioner with regard to simultaneously serving as a borough manager. Facts: As Solicitor for the Borough of Monaca ( "Borough ") in Beaver County, you request an advisory regarding the prospective service of an individual named Mario Leone ( "Leone ") as Borough Manager. Your request for this advisory has been authorized by Leone, as well as by a unanimous vote of all ten Members of Borough Council. It is administratively noted that Leone is currently a Commissioner for Hopewell Township ( "Township ") in Beaver County. In your initial advisory request letter, you posed multiple inquiries pertaining to the propriety of: (1) the casting of votes to hire Leone as Borough Manager; and (2) the hiring and service of Leone as Borough Manager, given Leone's additional service as a Township Commissioner. Following the submission of your initial advisory request letter, and prior to the issuance of this advisory, Borough Council voted to hire Leone. In your faxed transmission of July 30, 2007, you state that Borough Council has hired Leone conditioned upon your receiving a favorable response to your request for an advisory. You state that Leone has not yet commenced employment as Borough Manager. Urick, 07 -562 July 31, 2007 Page 2 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 initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. 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 advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. Because Borough Council has already voted to hire Leone, your questions as to such votes /hiring of Leone involve past conduct and shall not be addressed in this advisory. Because Leone has not yet commenced employment as the Borough Manager, your remaining question as to whether the Ethics Act would prohibit or restrict Leone with regard to simultaneously serving as a Township Commissioner and as Borough Manager may and shall be addressed. As a Township Commissioner, Leone is a public official subject to the provisions of the Ethics Act. Upon commencing employment as Borough Manager, Leone would, in that capacity, be considered a public official /public employee subject to the Ethics Act. 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. Urick, 07 -562 July 31, 2007 Page 3 65 Pa.C.S. §§ 1103(a), (j). The following terms are defined in the Ethics Act 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. There does not appeal to be any statutorily- declared incompatibility precluding simultaneous service in the positions of Township Commissioner and Borough Manager. Turning to the question of conflict of interest, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /public 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. Where simultaneous service would place the public official /public employee 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 /public employee 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. In this case, based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude Leone's prospective simultaneous service as a Township Commissioner and Borough Manager. Consequently, such Urick, 07 -562 July 31, 2007 Page 4 simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Commissioner for Hopewell Township ( "Township "), Mario Leone ( "Leone ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon commencing employment as Borough Manager for Monaca Borough ( "Borough "), Leone would, in that capacity, be considered a public official /public employee subject to the Ethics Act. Leone may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Township Commissioner and Borough Manager subject to the restrictions, conditions, and qualifications set forth above. Lastly, the propriety of the proposed 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