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HomeMy WebLinkAbout10-555 DiPaolo ADVICE OF COUNSEL March 22, 2010 Gregory L. Sturn, Esquire Harris and Harris 1760 Bristol Road P.O. Box 160 Warrington, PA 18976 10-555 Dear Mr. Sturn: This responds to your letter dated January 28, 2010, 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 four borough council members with regard to receiving compensation pursuant to a borough ordinance, where: (1) none of the four borough council members voted for the ordinance; (2) for two of the borough council members, such compensation would constitute an unauthorized increase in compensation during their current terms; and (3) the other two borough council members had been elected but were not yet in office at the time the compensation ordinance was approved. 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 from the Pennsylvania State Ethics Commission on behalf of Borough Council Members William Martini (“Mr. Martini”), Salvatore DiPaolo (“Mr. DiPaolo”), Roderick Boyle (“Mr. Boyle”), and Jennifer Armstrong (“Ms. Armstrong”). You have submitted facts that may be fairly summarized as follows. By letter dated November 4, 2009 (received November 9, 2009), you previously submitted a request for an advisory from the Pennsylvania State Ethics Commission on behalf of Borough Mayor Charles Ritter (“Mayor Ritter”) and five then-incumbent Members of Borough Council, including Mr. Martini and Mr. DiPaolo. In response to your request, Sturn, Advice 09-585, was issued to you on December 30, 2009. Your prior advisory request presented facts that were summarized in Advice 09- 585 as follows: 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 Sturn, 10-555 March 22, 2010 Page 2 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. 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. . . . 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. Sturn, Advice 09-585, at 1-2. Based upon the above submitted facts, you asked 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, Sturn, 10-555 March 22, 2010 Page 3 where the Compensation Ordinance would establish compensation for the aforesaid Borough officials during their current terms of office. Advice 09-585 noted that in Buckwalter v. Borough of Phoenixville, Pa. , 985 A.2d 728 (2009), the Supreme Court of Pennsylvania held: (1) that Article III, Section 27 of the Pennsylvania Constitution applies to municipal ordinances; and (2) that a borough council lacked the authority to change its council members’ pay during incumbent council members’ terms. Based upon the aforesaid judicial precedent, the Advice determined that 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. The Advice accordingly concluded that 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. In your most recent advisory request letter, you state that on December 9, 2009, Borough Council decided to proceed with consideration of the proposed Compensation Ordinance. You state that the proposed Compensation Ordinance was properly advertised. You further state that Borough Council approved the Compensation Ordinance by a vote of five to zero at a meeting where Mr. DiPaolo and Mr. Martini were absent. Mayor Ritter subsequently approved the Compensation Ordinance. You state that Mr. Boyle and Ms. Armstrong took office as Council Members on January 4, 2010, having been elected in November 2009. Based upon the above submitted facts, you pose the following specific questions: 1. Whether Mr. Martini and Mr. DiPaolo, who did not vote for the Compensation Ordinance, would violate the Ethics Act if they would begin receiving compensation during their present terms of office pursuant to said ordinance; and 2. Whether Mr. Boyle and Ms. Armstrong, who were not Council Members at such time as the Compensation Ordinance was approved, would violate the Ethics Act if they would receive compensation during their present terms of office pursuant to said ordinance. 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. As Borough Council Members, Mr. Martini, Mr. DiPaolo, Mr. Boyle, and Ms. Armstrong are public officials as that term is defined in the Ethics Act, and therefore they are subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: Sturn, 10-555 March 22, 2010 Page 4 § 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 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. Sturn, 10-555 March 22, 2010 Page 5 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 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. It is administratively noted that 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 (Emphasis added). Your specific questions shall now be addressed. With regard to Mr. Martini and Mr. DiPaolo, who did not vote for the Compensation Ordinance but who were already in office at the time the Compensation Ordinance was approved, you are advised as follows. The receipt by Mr. Martini or Mr. DiPaolo of such unauthorized increase in compensation during a current term of office (see, Buckwalter v. Borough of Phoenixville, supra) would constitute a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. Accordingly, the receipt by Mr. Martini or Mr. DiPaolo of such unauthorized increase in compensation during a current term of office would transgress Section 1103(a) of the Ethics Act to the extent the remaining element of a use of authority of office would occur. As for Mr. Boyle and Ms. Armstrong, who were elected during the November 2009 election—prior to the December 2009 approval of the Compensation Ordinance— but who did not take office until January 4, 2010, you are advised as follows. The State Ethics Commission does not have the statutory jurisdiction to interpret the Pennsylvania Constitution. Therefore, you are advised that if the receipt by Mr. Boyle or Ms. Armstrong during his/her current term of office of compensation pursuant to the Compensation Ordinance would be contrary to Article III, Section 27 of the Pennsylvania Constitution, such unauthorized increase in compensation would constitute a private pecuniary benefit and would transgress Section 1103(a) of the Ethics Act to the extent the remaining element of a use of authority of office would occur. If the receipt by Mr. Boyle or Ms. Armstrong during his/her current term of office of compensation pursuant to the Compensation Ordinance would be permitted pursuant to Article III, Section 27 of the Pennsylvania Constitution, such compensation would not form the basis for a violation of Section 1103(a) of the Ethics Act. Sturn, 10-555 March 22, 2010 Page 6 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As Borough Council Members for Ivyland Borough (“Borough”) located in Bucks County, Pennsylvania, William Martini (“Mr. Martini”), Salvatore DiPaolo (“Mr. DiPaolo”), Roderick Boyle (“Mr. Boyle”), and Jennifer Armstrong (“Ms. Armstrong”) are public officials subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Under the submitted facts that: (1) in December 2009, Borough Council approved a compensation ordinance (“Compensation Ordinance”) providing compensation for Borough Council Members at the rate of $100 per month, with officers receiving an additional $15 or $30 per month; (2) Borough Council Members were previously uncompensated; (3) Mr. DiPaolo and Mr. Martini did not vote for the Compensation Ordinance but were already in office at the time the Compensation Ordinance was approved; and (4) Mr. Boyle and Ms. Armstrong were elected during the November 2009 election—prior to the December 2009 approval of the Compensation Ordinance—but did not take office until January 4, 2010, you are advised as follows. The receipt by Mr. Martini or Mr. DiPaolo of such 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, the receipt by Mr. Martini or Mr. DiPaolo of such unauthorized increase in compensation during a current term of office would transgress Section 1103(a) of the Ethics Act to the extent the remaining element of a use of authority of office would occur. Under the submitted facts, if the receipt by Mr. Boyle or Ms. Armstrong during his/her current term of office of compensation pursuant to the Compensation Ordinance would be contrary to Article III, Section 27 of the Pennsylvania Constitution, such unauthorized increase in compensation would constitute a private pecuniary benefit and would transgress Section 1103(a) of the Ethics Act to the extent the remaining element of a use of authority of office would occur. If the receipt by Mr. Boyle or Ms. Armstrong during his/her current term of office of compensation pursuant to the Compensation Ordinance would be permitted pursuant to Article III, Section 27 of the Pennsylvania Constitution, such compensation would not form the basis for a violation of Section 1103(a) of the Ethics Act. 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 Sturn, 10-555 March 22, 2010 Page 7 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