HomeMy WebLinkAbout08-542 TRZCIANKADavid Trzcianka
503 Virginia Ave.
Baden, PA 15005
Dear Mr. Trzcianka:
ADVICE OF COUNSEL
April 24, 2008
08 -542
This responds to your letter dated March 4, 2008, received March 17, 2008, by
which you requested advice from the Pennsylvania 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 borough
council member, who simultaneously serves as a member of a municipal authority board
and as the fire chief of a volunteer fire department, with regard to receiving compensation
for his service in any of the aforesaid capacities.
Facts: As a Member of Council for the Borough of Baden ( "Borough "), you
request an advisory from the Pennsylvania State Ethics Commission based upon
submitted facts that may be fairly summarized as follows.
You began serving a four -year term as an elected Borough Council Member in
January 2008. The Borough pays its Council Members a monthly stipend of $125 for their
service.
You are also a Member of the Board of the Municipal Authority of the Borough
( "Authority "), having served in that capacity for the past four years. Authority Board
Members are appointed by Borough Council for six -year terms. Authority Board Members
receive a monthly stipend of $100, paid by the Authority.
You are currently serving your nineteenth year as Fire Chief for the Baden
Volunteer Fire Department ( "Fire Department "). In your capacity as Fire Chief, the
Borough pays you a monthly stipend of $125 to reimburse you for expenses incurred while
performing fire code related inspections within the municipality and to ensure that all Fire
Department vehicles are maintained and all required paperwork regarding fire incidents
and training is completed. The Fire Department has its own Charter, Constitution, and By-
laws. The Fire Chief is elected each year by the members of the Fire Department. You
state that Borough Council has no control as to the election of the Fire Department
Officers. You further state that the Fire Department receives less than fifty - percent (50 %)
of its funding from the Borough, of which funding the Borough maintains control. The Fire
Department raises the rest of its funds through various fundraising activities. The Borough
and the Fire Department each own some of the fire apparatus.
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April 24, 2008
Page 2
You note that in addition to your service in the aforementioned positions, you are
employed as a 911 Crew Chief with Beaver County, Pennsylvania.
You state that you currently accept the monthly stipend for serving on the Authority
Board. You state that while you have received the monthly stipend checks for serving as
Fire Chief, you have not cashed them. You further state that you have refused the monthly
stipend for serving on Borough Council.
Based upon the above submitted facts, you ask which stipend(s) you would be
entitled to accept and which stipend(s) you should refuse.
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 the same aforesaid Sections of the Ethics Act, 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.
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.
As a Borough Council Member and an Authority Board Member, you are 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
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April 24, 2008
Page 3
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
"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.
"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
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April 24, 2008
Page 4
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.
The Commission has determined that if a particular statutory enactment prohibits a
public official from receiving a financial benefit, then that public official's receipt of such a
prohibited benefit, through the authority of public office, would also be a use of the
authority of office contrary to Section 1103(a) of the Ethics Act.
It is administratively noted that in your capacity as a Borough Council Member, you
would be permitted to receive compensation pursuant to Section 46001 of the Borough
Code, 53 P.S. § 46001. Subject to the condition that the monthly stipend paid to Borough
Council Members would remain within the range provided for by Section 46001 of the
Borough Code relative to the population of the Borough, the Ethics Act would not prohibit
you from accepting said stipend.
In order to determine whether the Ethics Act would permit you to receive a monthly
stipend for serving as an Authority Board Member while simultaneously serving as a
Borough Council Member, the following provisions of the Municipality Authorities Act, 53
Pa.C.S. § 5601 et seq., and the Borough Code, 53 P.S. § 45101 et seq., must be reviewed.
Section 5610 of the Municipality Authorities Act provides in pertinent part as follows:
§ 5610. Governing body
(D) SUCCESSOR.— Members shall hold office until their
successors have been appointed and may succeed
themselves and ... shall receive such salaries as may be
determined by the governing body of the municipality, but no
salaries shall be increased or diminished by a governing body
during the term for which the member shall have been
appointed....
53 Pa.C.S. § 5610(D).
Section 46104 of the Borough Code provides, in pertinent part, 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 councilman 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....
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.
Lichty, Advice 92 -635 observed that simultaneous service as a council member and
authority board member was permitted by the Borough Code. However, with respect to the
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April 24, 2008
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compensation question, the Lichty Advice stated:
It is not clear whether a position on the Municipal Authority,
which has presumably been created under the Municipality
Authorities Act, 53 P.S. §301 et seq., and is a separate
governmental body from the Borough Council, would be
deemed to be a Borough position. Therefore, while it is clear
that the Borough Code would not preclude your holding both
positions, a judicial determination would be required as to
whether you could be compensated as an Authority member.
Lichty, Advice 92 -635 at 3 (Emphasis in the original).
As noted above, the answer to the question of whether you may receive
compensation for serving as an Authority Board Member while simultaneously serving as a
Borough Council Member 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 you
from receiving compensation as an Authority Board Member while serving as a Borough
Council Member, receipt of such unauthorized compensation could form the basis for a
conflict of interest under Section 1103(a) of the Ethics Act.
You are further advised that if the Borough Code would permit you to receive
compensation as an Authority Board Member while simultaneously serving as a Borough
Council Member, then the Ethics Act would not prohibit you from receiving such
compensation. However, you would generally have a conflict of interest under Section
1103(a) of the Ethics Act in matters before Borough Council that would involve a financial
gain to you as an Authority Board Member.
As for whether you could receive compensation for serving as Fire Chief of the Fire
Department while simultaneously serving as a Borough Council Member and Authority
Board Member, you are advised as follows.
For purposes of the Ethics Act, depending upon the circumstances in a given case,
a fire company may be considered to be a private entity or part of a governmental
body /political subdivision. Among the most significant factors in determining the status of
a fire company is the degree to which the fire company is funded and controlled by the
governmental body /political subdivision, or alternatively raises its own funds and governs
itself.
Based upon the submitted facts that: (1) the Fire Chief is elected each year by the
members of the Fire Department; (2) Borough Council has no control as to the election of
the Fire Department Officers; (3) the Fire Department has its own Charter, Constitution,
and By -laws; and (4) the Fire Department receives less than fifty - percent (50 %) of its
funding from the Borough and raises the rest of its funds through various fundraising
activities, you are advised that the Fire Department would be considered to be a private
entity and would not be considered part of the Borough. Cf., Snyder, Advice 08 -527;
Stuart, Advice 96 -595. Accordingly, you are advised that the Ethics Act would not prohibit
you from receiving the monthly stipend from the Borough for serving as Fire Chief of the
Fire Department while simultaneously serving as a Borough Council Member and an
Authority Board Member.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As a Member of Council for the Borough of Baden ( "Borough ") and a
Member of the Board of the Municipal Authority of the Borough ( "Authority "), you are a
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April 24, 2008
Page 6
public official subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) Authority
Board Members receive a monthly stipend of $100, paid by the Authority; and (2) the
Borough pays its Council Members a monthly stipend of $125 for their service, you are
advised as follows. Subject to the condition that the monthly stipend paid to Borough
Council Members would remain within the range provided for by Section 46001 of the
Borough Code relative to the population of the Borough, the Ethics Act would not prohibit
you from accepting said stipend. The State Ethics Commission does not have the express
statutory jurisdiction to interpret the Borough Code. If the Borough Code would prohibit
you from receiving compensation as an Authority Board Member while serving as a
Borough Council Member, receipt of such unauthorized compensation could form the basis
for a conflict of interest under Section 1103(a) of the Ethics Act. If the Borough Code
would permit you to receive compensation as an Authority Board Member while
simultaneously serving as a Borough Council Member, then the Ethics Act would not
prohibit you from receiving such compensation. However, you would generally have a
conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough
Council that would involve a financial gain to you as an Authority Board Member. Based
upon the submitted facts that: (1) you currently serve as Fire Chief for the Baden Volunteer
Fire Department ( "Fire Department "); (2) the Borough pays you a monthly stipend of $125
in your capacity as Fire Chief; (3) the Fire Chief is elected each year by the members of
the Fire Department; (4) Borough Council has no control as to the election of the Fire
Department Officers; (5) the Fire Department has its own Charter, Constitution, and By-
laws; and (6) the Fire Department receives less than fifty - percent (50 %) of its funding from
the Borough and raises the rest of its funds through various fundraising activities, you are
advised as follows. The Fire Department would be considered to be a private entity and
would not be considered part of the Borough. Accordingly, the Ethics Act would not
prohibit you from receiving the monthly stipend from the Borough for serving as Fire Chief
of the Fire Department while simultaneously serving as a Borough Council Member and an
Authority Board Member.
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,
Trzcianka, 08 -542
April 24, 2008
Page 7
Robin M. Hittie
Chief Counsel