HomeMy WebLinkAbout11-522 Garver
ADVICE OF COUNSEL
April 25, 2011
Thomas E. Garver
10 W. Cedar Lane
Burnham, PA 17009
11-522
Dear Mr. Garver:
This responds to your letter dated March 15, 2011, 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 who also serves as an uncompensated member of a municipal
authority board with regard to receiving a salary as an authority board member during
his current term of office.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You are a Member of Borough Council for the Borough of Burnham (“Borough”),
located in Mifflin County, Pennsylvania. You are also a Member of the Board (“Board”)
of the Burnham Borough Authority (“Authority”). The Authority was created pursuant to
the Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq. Borough Council appoints
the Members of the Authority Board.
Authority Board Members do not currently receive any compensation for their
service. Borough Council is considering establishing a salary for Authority Board
Members.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would permit you to receive a salary during your current term of office as an
Authority Board Member.
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
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April 25, 2011
Page 2
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 and as an Authority Board Member, you are a
public official as that term is defined in the Ethics Act, and therefore you are 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 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
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April 25, 2011
Page 3
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 conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
The Commission has determined that if a particular statutory enactment prohibits
a public official/public employee from receiving a particular pecuniary benefit or financial
gain, then the public official’s/public employee’s receipt of same, through the authority of
the public position, is unauthorized in law and hence, contrary to Section 1103(a) of the
Ethics Act. Confidential Opinion, 03-003.
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 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…. 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).
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
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April 25, 2011
Page 4
themselves and, except members of the boards of
authorities organized or created by a school district, 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) (Emphasis added).
Section 46104 of the Borough Code on its face prohibits a borough council
member 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
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 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 .
Additionally, receiving an increase in salary during an existing term of office as
an Authority Board Member in contravention of Section 5610(d) of the Municipality
Authorities Act would constitute a private pecuniary benefit contrary to Section 1103(a)
of the Ethics Act. See, Russell v. State Ethics Commission, 987 A.2d 835 (Pa. Cmwlth.
2009), allocatur denied, 4 A.3d 1056 (Pa. 2010).
Given that Authority Board Members currently are not compensated, receiving
compensation as an Authority Board Member during your current term of office 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. See, Russell, supra.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion:
As a Member of Borough Council for the Borough of Burnham
(“Borough”), located in Mifflin County, Pennsylvania, and as a Member of the Board
(“Board”) of the Burnham Borough 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. Based upon the submitted facts that: (1) the Authority was
created pursuant to the Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq.; (2)
Authority Board Members do not currently receive any compensation for their service;
and (3) Borough Council is considering establishing a salary for Authority Board
Members, you are advised as follows. The State Ethics Commission does not have the
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 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.
Additionally, receiving an increase in salary during an existing term of office as an
Authority Board Member in contravention of Section 5610(d) of the Municipality
Authorities Act would constitute a private pecuniary benefit contrary to Section 1103(a)
of the Ethics Act. Given that Authority Board Members currently are not compensated,
receiving compensation as an Authority Board Member during your current term of
office 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
Garver, 11-522
April 25, 2011
Page 5
occur. 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