HomeMy WebLinkAbout08-549 ROWANMark Rowan, Esquire
Rowan Law Offices
325 Memorial Boulevard
Connellsville, PA 15425
Dear Mr. Rowan:
ADVICE OF COUNSEL
May 2, 2008
08 -549
This responds to your letters dated March 24, 2008, and March 28, 2008, and your
faxed transmission received March 31, 2008, by which you requested an advisory 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 impose any prohibitions or restrictions upon a borough
council member with regard to simultaneously serving as the borough code enforcement
officer and receiving compensation for serving as the borough code enforcement officer.
Facts: As Solicitor for Everson Borough ( "Borough "), located in Fayette County,
Pennsylvania, you have been authorized by a Borough Council Member (hereinafter
referred to as the Council Member ") to request an advisory from the Pennsylvania State
Ethics Commission on his behalf. You have submitted facts that may be fairly summarized
as follows.
The Borough has a population of approximately 1,000. You state that the Borough
defers enforcement of the Pennsylvania Construction Code Act, 35 P.S. § 7210.101 et
seq., to Fayette County.
Prior to being elected to Council, the Council Member served as the Borough Code
Enforcement Officer.
Citing Section 46104 of the Borough Code, 53 P.S. § 46104, you ask whether the
Ethics Act would permit the Council Member to simultaneously serve as the Borough Code
Enforcement Officer and to receive compensation for serving as the Borough Code
Enforcement Officer. In particular, you ask whether the position of Borough Code
Enforcement Officer would be considered a "borough office created or authorized by
statute" within the meaning of Section 46104 of the Borough Code, 53 P.S. § 46104, and if
so, whether the position of Borough Code Enforcement Officer could be established as a
compensated employment position within the Borough.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
Rowan, 08 -549
May 2, 2008
Page 2
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.
As a Borough Council Member, the Council Member on whose behalf you have
inquired is 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 related to Section 1103(a) 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
Rowan, 08 -549
May 2, 2008
Page 3
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.
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.
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.
It is administratively noted that 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 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....
Rowan, 08 -549
May 2, 2008
Page 4
53 P.S. § 46104 (Emphasis added).
It is also administratively noted that the Pennsylvania Construction Code Act refers
to code enforcement officers as "code administrators." 35 P.S. § 7210.103. The term
"code administrator" includes "[a] municipal code official, a construction code official, a
third -party agency or the Department of Labor and Industry." Id. The Pennsylvania
Construction Code Act provides that a municipality may: (1) designate an employee to
serve as the municipal code official to act on behalf of the municipality for administration
and enforcement; (2) retain one or more construction code officials or third -party agencies
to act on behalf of the municipality for administration and enforcement; (3) enter into an
intermunicipal agreement providing for joint administration and enforcement; (4) contract
with the proper authorities of another municipality to secure administration and
enforcement services; or (5) enter into an agreement with the Pennsylvania Department of
Labor and Industry for plan reviews, inspections and enforcement as to certain types of
structures. 35 P.S. § 7210.501(b). On its face, the Pennsylvania Construction Code Act
specifically prohibits members of a municipality's governing body from serving as members
of the board of appeals that hears appeals from decisions of the code administrator. 35
P.S. § 7210.501(c)(1). However, there does not appear to be any provision in the
Pennsylvania Construction Code Act that prohibits a member of a municipality's governing
board from serving as the municipality's code administrator.
You are advised that there does not appear to be any statutorily declared
incompatibility that would preclude the Council Member from simultaneously serving as the
Borough Code Enforcement Officer. 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 the Council Member from simultaneously serving as the
Borough Code Enforcement Officer. (Cf., Spruill, Advice 06 -512). Absent a statutorily
declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would
not preclude simultaneous service in the aforesaid positions, but in each instance of a
conflict of interest, the Council Member would be required to abstain fully from
participation, and in the instance of a voting conflict, to abstain fully and satisfy the
disclosure requirements of Section 1103(j) of the Ethics Act.
Although the Ethics Act would not prohibit the Council Member from simultaneously
serving as the Borough Code Enforcement Officer, you are cautioned that there are issues
as to whether the Council Member could receive any compensation for his simultaneous
service as the Borough Code Enforcement Officer. Section 46104 of the Borough Code on
its face prohibits a borough council member from being compensated for serving in any
borough office created or authorized by statute. The determinations of whether the
position of Borough Code Enforcement Officer would be considered a borough office
created or authorized by statute and, if so, whether such position could be established as
an employment position within the Borough, would hinge upon an interpretation of the
Borough Code. The State Ethics Commission does not have the statutory jurisdiction to
interpret the Borough Code.
Therefore, you are generally advised that to the extent Section 46104 of the
Borough Code would prohibit the Council Member from receiving compensation for his
simultaneous service as the Borough Code Enforcement Officer, receipt of such
unauthorized compensation could form the basis for a conflict of interest under Section
1103(a) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: The Borough Council Member (hereinafter referred to as the Council
Member ") for Everson Borough on whose behalf you have inquired is a public official
Rowan, 08 -549
May 2, 2008
Page 5
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. The Council Member may, consistent with Section 1103(a) of the
Ethics Act, simultaneously serve in the position of Borough Code Enforcement Officer
subject to the restrictions, conditions and qualifications set forth above. To the extent
Section 46104 of the Borough Code would prohibit the Council Member from receiving
compensation for his simultaneous service as the Borough Code Enforcement Officer,
receipt of such unauthorized compensation could form the basis for a conflict of interest
under Section 1103(a) 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) of the Ethics Act, 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