HomeMy WebLinkAbout09-577 HouseholderDavid G. Householder
165 Ellsworth Avenue
Elizabeth, PA 15037
Dear Mr. Householder:
ADVICE OF COUNSEL
October 30, 2009
09 -577
This responds to your letter dated September 17, 2009 (received September 24,
2009), 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 member and
vice chairman of a municipal authority board with regard to simultaneously serving as a
borough mayor.
Facts: You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You currently serve as a Member and Vice Chairman of the Board of the Elizabeth
Borough Municipal Authority ( "Authority "). You state that the Authority was duly created
pursuant to the Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq. Members of the
Authority Board are appointed by Council for Elizabeth Borough ( "Borough "), located in
Allegheny County, Pennsylvania.
You state that you intend to seek election in November 2009 as Mayor of the
Borough. You state that if you would be elected Borough Mayor, you would have the
authority to cast the deciding vote to break a tie vote of Borough Council.
You request an advisory as to whether the Ethics Act would impose any prohibitions
or restrictions upon you with regard to simultaneously serving as a Member and Vice
Chairman of the Authority Board and as Borough Mayor.
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
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October 30, 2009
Page 2
to the extent the requester has truthfully disclosed all of the material facts.
As a Member and Vice Chairman of the Authority Board, you are a public official
subject to the provisions of the Ethics Act. If you would become Borough Mayor, 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 pertaining to conflicts of interest under the Ethics Act are
defined 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
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October 30, 2009
Page 3
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.
Subject to certain statutory exceptions, 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 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....
53 P.S. § 46104 (Emphasis added).
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 Member and
Vice Chairman of the Authority Board and as Borough Mayor. Likewise, based upon the
facts that have been submitted, there does not appear to be an inherent conflict under
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October 30, 2009
Page 4
Section 1103(a) of the Ethics Act that would preclude your simultaneous service as a
Member and Vice Chairman of the Authority Board and as Borough Mayor. (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 in the instance of a voting conflict, to
abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
You are advised that as Borough Mayor, you generally would have a conflict of
interest under Section 1103(a) of the Ethics Act in matters before Borough Council that
would financially impact the Authority Board Members, such as, for example, the setting of
their salary. As noted, in each instance of a conflict of interest, you 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 you from simultaneously serving as a
Member and Vice Chairman of the Authority Board and as Borough Mayor, you are
cautioned that there are issues as to whether you could receive any compensation for your
simultaneous service on the Authority Board. Section 46104 of the Borough Code on its
face prohibits a borough mayor from receiving compensation for serving on any board,
commission, bureau or other agency created by or for the borough. The State Ethics
Commission does not have the statutory jurisdiction to interpret the Borough Code.
Therefore, you are generally advised that to the extent the Borough Code would prohibit
you from receiving compensation as a Member and Vice Chairman of the Authority Board
while simultaneously serving as Borough Mayor, 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: As a Member and Vice Chairman of the Board of the Elizabeth
Borough Municipal 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. If
you would become Mayor of Elizabeth Borough ( "Borough "), 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 Member and Vice Chairman of the Authority
Board and as Borough Mayor, subject to the restrictions, conditions and qualifications set
forth above. As Borough Mayor, you generally would have a conflict of interest under
Section 1103(a) of the Ethics Act in matters before Borough Council that would financially
impact the Authority Board Members, such as, for example, the setting of their salary. In
each instance of a conflict of interest, you 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. To the extent the Borough
Code would prohibit you from receiving compensation as a Member and Vice Chairman of
the Authority Board while simultaneously serving as Borough Mayor, 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.
Householder, 09 -577
October 30, 2009
Page 5
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