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HomeMy WebLinkAbout07-601 GENARDDaniel J. Genard 701 Hillis Street Youngwood, PA 15697 Dear Mr. Genard: ADVICE OF COUNSEL December 20, 2007 07 -601 This responds to your letter of November 9, 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 present any prohibitions or restrictions upon a volunteer member of a municipal authority board, who also serves as a part -time employee of the municipal authority, with regard to simultaneously serving as a member of borough council. Facts: You are a volunteer Member of the Board of the Youngwood Sewage Authority ( "Authority "). You are also employed by the Authority as a licensed operator on a temporary, part -time basis. You work two to four hours per month to relieve permanent employees on weekends and holidays. You state that you will work for the Authority only until the Authority hires an individual to work weekends. You state that you have been elected to the Youngwood Borough Council ( "Borough Council ") and will serve in that position effective January 7, 2008. You ask whether the Ethics Act would prohibit you from simultaneously serving in the positions of: (1) volunteer Member of the Authority Board; (2) part -time, temporary employee of the Authority; and (3) Borough Council Member. It is administratively noted that in 2005, you obtained an Advice of Counsel under similar facts. See, Genard, Advice 05 -605. 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. Genard, 07 -601 December 20, 2007 Page 2 It is further noted that, pursuant to the same aforesaid Sections 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 that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. Preliminarily, it is noted that you have not submitted an official job description for your position as a licensed operator with the Authority. This advisory does not address whether you are a "public employee" subject to the Ethics Act in that position. In your capacity as an Authority Board Member, you are a public official subject to the provisions of the Ethics Act. Upon taking office as a Borough Council Member, you would in that capacity also be a public official subject to the provisions of 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. 65 Pa.C.S. §§ 1103(a), (j). The following terms are defined in the Ethics Act as follows: § 1102. Definitions Genard, 07 -601 December 20, 2007 Page 3 "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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa. C. S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. Genard, 07 -601 December 20, 2007 Page 4 In considering 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 Borough Code provides as follows: § 46104. Appointments; incompatible offices Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or member of council shall receive compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employe of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer.... Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor.... 53 P.S. § 46104. In considering the above provision of the Borough Code, there does not appear to be any prohibition that would preclude you from simultaneously serving as a Borough Council Member, a volunteer Member of the Authority Board, and a temporary, part -time employee of the Authority. Likewise, based upon the facts that have been submitted, there does not appear to be an inherent conflict under Section 1103(a) of the Ethics Act that would preclude your simultaneous service as a Borough Council Member, a volunteer Member of the Authority Board, and a temporary, part -time employee of the Authority. (See, e.q., McCain, Opinion 02 -009). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude you from simultaneously serving in the aforesaid positions, but in each instance of a conflict of interest, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. You are advised that since the Authority is a "political subdivision" and not a "business" as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01- 005; McCarrier, Opinion 98 -008; Warso, Order 974. You would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council pertaining to the Authority Board members - -such as the nomination, appointment, or reappointment by Borough Council of member(s) of the Authority -- because such individual(s) would exercise authority over you with respect to your employment as a part -time, licensed operator with the Authority. See, Confidential Opinion, 05 -004; Elisco, Opinion 00 -003; Woodrinq, Opinion 90 -001. As noted above, in each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Genard, 07 -601 December 20, 2007 Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a volunteer Member of the Board of the Youngwood Sewage Authority ( "Authority "), 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. Upon taking office as a Member of the Youngwood Borough Council ( "Borough Council "), you would in that capacity also be a public official subject to the Ethics Act. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Borough Council Member, a volunteer Member of the Authority Board, and a temporary, part -time Authority employee, subject to the restrictions, conditions and qualifications set forth above. Since the Authority is a "political subdivision" and not a "business" as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. You would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council pertaining to the Authority Board members - -such as the nomination, appointment, or reappointment by Borough Council of member(s) of the Authority -- because such individual(s) would exercise authority over you with respect to your employment as a part - time, licensed operator with the Authority. in each instance of a conflict of interest, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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