HomeMy WebLinkAbout08-505 GARNERCharles D. Garner, Jr., Esquire
Law Offices of Garner and Bauer
2050 East High Street
Pottstown, PA 19464
Dear Mr. Garner:
ADVICE OF COUNSEL
January 18, 2008
08 -505
This responds to your faxed transmission of December 10, 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 member of a
borough council with regard to simultaneously serving as solicitor fora municipal authority.
Facts: As Solicitor for the Borough of Pottstown ( "Borough "), you have been
authorized by David Garner ("Garner "), a newly - elected Borough Council Member, to
request an advisory from the State Ethics Commission on his behalf as to the following.
Garner is an attorney licensed to practice law in the Commonwealth of
Pennsylvania. You state that Garner currently serves as Solicitor for the Pottstown
Borough Authority ( "Authority "), a municipal authority that was incorporated more than 50
years ago by Borough Council. The Authority, which is charged with providing public water
and sewer service within the Borough and to neighboring municipalities, owns and
oversees the operations of both a wastewater treatment plant and a water treatment plant.
The Authority Board is comprised of five members. You note that while the
Authority and the Borough are separate entities, Borough Council appoints the members of
the Authority Board as required by the Municipality Authorities Act, 53 Pa.C.S. § 5601 et
seq. You state that the Authority appoints its own Solicitor from its own funds acquired
through charging water and sewer fees.
Garner will serve as a Borough Council Member commencing January 7, 2008.
Borough Council consists of seven Members, each of whom represents one of the
Borough's seven wards.
You state that you have advised Garner that once he assumes office as a Borough
Council Member, he should recuse himself from any discussions involving the appointment
of Authority Board Members and abstain from all voting on such appointments. You further
state that it is Garner's understanding that he could not represent the Authority in any
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January 18, 2008
Page 2
dispute between the Borough and the Authority, and that he could not be involved on
behalf of either entity where their interests may conflict. You express your view that in
such cases, the Authority would be required to hire special counsel, and you state that
Garner would be requested to refrain from any participation in those matters or in any
decisions made by Borough Council with respect to the Authority.
You ask generally whether the scenario set forth in the above submitted facts would
present any violation or potential violation of the Ethics Act.
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.
Preliminarily, it is noted that as a Solicitor who is retained by – as opposed to being
an employee of – the Authority, Garner would not be considered a "public official" or
"public employee" as those terms are defined by the Ethics Act. See, C.P.C. v. State
Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997). (However, Garner would be
required to file Statements of Financial Interests pursuant to the Ethics Act, both as a
Solicitor and as a Borough Council Member. See, 65 Pa.C.S. § 1104(a); P.J.S. v. State
Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999); Foster, Opinion 98 -002)
Upon taking office as a Borough Council Member, Garner would become 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
Garner, 08 -505
January 18, 2008
Page 3
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
"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.
Garner, 08 -505
January 18, 2008
Page 4
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.
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 Garner from simultaneously serving as a Borough
Council Member and Solicitor for 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 Garner's simultaneous service as a Borough Council
Member and Solicitor for 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 Garner from simultaneously serving in the aforesaid positions, but
in each instance of a conflict of interest, he would be required to abstain fully from
participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
As for whether Garner could receive compensation for serving as Solicitor for the
Authority while simultaneously serving as a Borough Council Member, you are advised that
the answer to that question hinges upon an interpretation of the Borough Code. The State
Ethics Commission does not have the express statutory jurisdiction to interpret the
Borough Code. Therefore, you are advised that if the Borough Code would prohibit Garner
from receiving compensation as Solicitor for the Authority while serving as a Borough
Council Member, receipt of unauthorized compensation could form the basis for a conflict
of interest under Section 1103(a) of the Ethics Act.
To the extent Garner would receive compensation or other pecuniary benefit(s) as
Authority Solicitor, he would generally have a conflict of interest under Section 1103(a) of
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January 18, 2008
Page 5
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. This conclusion is based upon the fact that such individual(s)
would exercise authority over him in his capacity as Solicitor for 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, Garner would be required to abstain
from participation and to fully 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, Garner 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 him, a member of his immediate
family, or a business with which he or a member of his 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.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Rules of
Professional Conduct.
Conclusion: Upon taking office as a Council Member for the Borough of Pottstown
( "Borough "), David Garner ( "Garner ") would become a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101
et seq. Garner may, consistent with Section 1103(a) of the Ethics Act, simultaneously
serve as a Borough Council Member and Solicitor for the Pottstown Borough Authority
"Authority "), subject to the restrictions, conditions and qualifications set forth above. The
State Ethics Commission does not have the express statutory jurisdiction to interpret the
Borough Code. If the Borough Code would prohibit Garner from receiving compensation as
Solicitor for the Authority while serving as a Borough Council Member, receipt of
unauthorized compensation could form the basis for a conflict of interest under Section
1103(a) of the Ethics Act. To the extent Garner would receive compensation or other
pecuniary benefit(s) as Authority Solicitor, he 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. In each instance of a conflict of interest,
Garner would be required to abstain fully from participation and to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act. Since the Authority is a "political
subdivision" and not a "business" as defined by the Ethics Act, Garner 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 him,
a member of his immediate family, or a business with which he or a member of his
immediate family is associated.
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
Garner, 08 -505
January 18, 2008
Page 6
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