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Home My WebLink About09-585 Sturn ADVICE OF COUNSEL December 30, 2009 Gregory L. Sturn, Esquire Harris and Harris 1760 Bristol Road P.O. Box 160 Warrington, PA 18976 09-585 Dear Mr. Sturn: This responds to your letter dated November 4, 2009 (received November 9, 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 present any prohibitions or restrictions upon a borough mayor, a member and president of a borough council, or borough council members with regard to enacting an ordinance that would establish compensation for the aforesaid borough officials during their current terms of office. Facts: As a member of the law firm that serves as Solicitor for Ivyland Borough (“Borough”), located in Bucks County, Pennsylvania, you request an advisory on behalf of Borough Mayor Charles Ritter (“Mayor Ritter”), Borough Council Member and President Robert Severn (“Borough Council President Severn”), and Borough Council Members William Martini, Albert DeGideo, Salvatore DiPaolo, and Shaun F. Gavaghan (hereinafter collectively referred to as “the Four Councilmen”). You have submitted facts, the material portion of which may be fairly summarized as follows. Borough Council presently consists of seven Members. Borough Council President Severn and the Four Councilmen will continue in office as of January 2010. The other two Borough Council Members did not seek reelection and will be replaced by new Council Members. You state that it is uncertain whether Borough Council President Severn will continue to serve as Council President following the reorganization of Borough Council in January 2010. Mayor Ritter will continue in office as of 2010. You state that there is presently no ordinance providing for compensation for the Borough Mayor or Borough Council Members, and the Borough Mayor and Borough Council Members do not presently receive compensation from the Borough. Sturn, 09-585 December 30, 2009 Page 2 You state that Borough Council proposes to consider an ordinance (“the Compensation Ordinance”) that would establish compensation for the Borough Mayor and Borough Council Members, with additional compensation for the President and Vice President of Borough Council. You have submitted a copy of the Compensation Ordinance, which document is incorporated herein by reference. If enacted, the Compensation Ordinance would become effective in 2010. You state that the Compensation Ordinance would establish compensation for the Borough Mayor at the rate of $130 per month, for total compensation of $1,560 per year. Each Borough Council Member would receive compensation at the rate of $100 per month, for total compensation of $1,200 per year. The Borough Council President would receive an additional $30 per month, and the Borough Council Vice President would receive an additional $15 per month, for respective total yearly compensation of $1,560 and $1,380. You state that the Borough’s population is less than 5,000. You further state that the Compensation Ordinance would meet the requirements of Sections 46001 and 46024 of the Borough Code regarding the allowable compensation limits for Borough Council Members, the Borough Council President, and the Borough Mayor. Based upon the above submitted facts, you ask whether the Ethics Act would present any prohibitions or restrictions upon the Four Councilmen, Borough Council President Severn, or Mayor Ritter with regard to enacting the Compensation Ordinance, where the Compensation Ordinance would establish compensation for the aforesaid Borough officials during their current terms of office. 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. Mayor Ritter, Borough Council President Severn, and the Four Councilmen are public officials 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 Sturn, 09-585 December 30, 2009 Page 3 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 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend 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 Sturn, 09-585 December 30, 2009 Page 4 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. Although the State Ethics Commission does not have the statutory jurisdiction to interpret the Pennsylvania Constitution, Article III, Section 27 of the Pennsylvania Constitution must be considered in order to determine whether the proposed compensation would be considered a private pecuniary benefit without authorization in law. See, Thompson, Opinion 99-005. Article III, Section 27 of the Pennsylvania Constitution provides: Changes in Term of Office or Salary Prohibited Section 27. No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment. Constitution of Pennsylvania, Article III, Section 27. The Supreme Court of Pennsylvania has held that the above Constitutional prohibition applies to municipal ordinances. See, Buckwalter v. Borough of Phoenixville, 64 MAP 2008 (December 28, 2009). In Buckwalter, the Supreme Court applied the restriction of Article III, Section 27 of the Pennsylvania Constitution to a borough ordinance that eliminated compensation for the borough’s council members and mayor effective immediately and held that the borough council lacked the authority to change its council members’ pay during incumbent council members’ terms. Based upon the above judicial precedent, you are advised as follows. Since there is no authorization in law for a borough council to alter the compensation of incumbent elected borough officials during their current terms of office, the receipt by Mayor Ritter, Council President Severn, or the Four Councilmen of such an unauthorized increase in compensation during a current term of office would constitute a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. Accordingly, as to each of the aforesaid Borough officials (that is, Mayor Ritter, Council President Severn, and the Four Councilmen), Section 1103(a) of the Ethics Act would prohibit the Borough official from participating in the enactment of any ordinance, including but not limited to the Compensation Ordinance, that would alter his compensation during his current term of office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Ivyland Borough (“Borough”) Mayor Charles Ritter (“Mayor Ritter”), Borough Council Member and President Robert Severn (“Borough Council President Severn”), and Borough Council Members William Martini, Albert DeGideo, Salvatore DiPaolo, and Shaun F. Gavaghan (hereinafter collectively referred to as “the Four Councilmen”) are public officials 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) Borough Council presently consists of seven Members; (2) Borough Council President Severn and the Four Councilmen will continue in office as of January 2010; (3) the other two Borough Council Members did not seek reelection and will be replaced by new Council Members; (4) Mayor Ritter will continue in office as of 2010; (5) there is presently no ordinance providing for compensation for the Borough Mayor or Borough Council Members; (6) the Borough Mayor and Borough Council Members do not presently receive compensation from the Borough; (7) Borough Council proposes to consider an ordinance (“the Compensation Ordinance”) that would establish compensation for the Borough Mayor and Borough Council Members, with additional compensation for the President and Vice President of Borough Council; and Sturn, 09-585 December 30, 2009 Page 5 (8) the Compensation Ordinance would become effective in 2010, you are advised as follows. Since there is no authorization in law for a borough council to alter the compensation of incumbent elected borough officials during their current terms of office, the receipt by Mayor Ritter, Council President Severn, or the Four Councilmen of such an unauthorized increase in compensation during a current term of office would constitute a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. Accordingly, as to each of the aforesaid Borough officials (that is, Mayor Ritter, Council President Severn, and the Four Councilmen), Section 1103(a) of the Ethics Act would prohibit the Borough official from participating in the enactment of any ordinance, including but not limited to the Compensation Ordinance, that would alter his compensation during his current term of office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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