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HomeMy WebLinkAbout11-529 Yeropoli ADVICE OF COUNSEL May 24, 2011 Vito J. Yeropoli 4471 West State Street Edinburg, PA 16116 11-529 Dear Mr. Yeropoli: This responds to your letter dated March 30, 2011, received April 8, 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 township supervisor with regard to simultaneously serving in a unionized position as a full-time sanitation worker (i.e., sanitation secretary, sanitation treasurer, sanitation laborer, or sanitation operator) with the township sanitation department. Facts: As a Supervisor for Mahoning Township (“Township”), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. In 2008, the Township established a sanitation department (“the Sanitation Department”) for the construction and installation of a sanitation system and plant (“Sanitation System”) for Township residents. You state that since 2008, the Township Board of Supervisors (“Board”) has utilized independent contractors for purposes related to the construction of the Sanitation System. It is anticipated that the Sanitation System will begin operating on September 1, 2011. You state that the Sanitation Department, which will report to the Board, will require the positions of sanitation secretary, sanitation treasurer, sanitation laborer, and sanitation operator (hereinafter collectively referred to as “Sanitation Department Workers”). You state that during the process, in your capacity as a Township Supervisor, you will not participate in the establishment of positions, wages, or benefits or as to any issue with the Sanitation Department. The positions of the Sanitation Department Workers will be full-time and will be covered by union bargaining. You have submitted copies of job descriptions for the positions of sanitation secretary and sanitation laborer, which documents are incorporated herein by reference. Yeropoli, 11-529 May 24, 2011 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would permit you to simultaneously serve as a Township Supervisor and a Sanitation Department Worker. It is administratively noted that you previously obtained an Advice of Counsel, Perrotta, Advice 08-582, issued to Louis M. Perrotta, Esquire, on your behalf on October 8, 2008, under similar facts. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. As a Township Supervisor, you are 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 Yeropoli, 11-529 May 24, 2011 Page 3 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. 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. Although the State Ethics Commission does not have the express statutory jurisdiction to interpret such other laws, it may review the Ethics Act to determine that a conflict exists based upon the statutory incompatibility. Corcoran, Opinion 08-003. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and the like) is derived as a result of holding incompatible positions simultaneously. See, Corcoran, supra; Confidential Opinion 03- 003. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. In this case, the following provisions of the Second Class Township Code are relevant to your inquiry: § 65403. Supervisors ... (b) Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position. Nothing in this Yeropoli, 11-529 May 24, 2011 Page 4 subsection shall prohibit a supervisor from being a member of a township planning commission created under the act of July 31, 1968 (P.L. 805, No. 247), known as the “Pennsylvania Municipalities Planning Code.” … 53 P.S. § 65403(b). § 65602. Organization meeting; appointment of secretary and treasurer … (c) The board of supervisors may appoint a supervisor to be employed as roadmaster, laborer, secretary, treasurer, assistant secretary, assistant treasurer or in any employe capacity not otherwise prohibited by this or any other act. … 53 P.S. § 65602(c). It is clear from the face of the above provisions of the Second Class Township Code that a Township Supervisor may be appointed to any Township employee position where such is not otherwise prohibited by law. It is further noted that where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain, and in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. Based upon the submitted facts, there does not appear to be an inherent conflict under Section 1103(a) of the Ethics Act that would preclude you from simultaneously serving as a Township Supervisor and a Sanitation Department Worker. (Cf., Perrotta, Advice 08-582). Therefore, you are advised that Section 1103(a) of the Ethics Act would not prohibit you from simultaneously serving as a Township Supervisor and in a particular position as a Sanitation Department Worker (that is, the position of sanitation secretary, sanitation treasurer, sanitation laborer, or sanitation operator) subject to the condition that such particular Sanitation Department Worker position would be an employment position within the Township. In each instance of a conflict of interest, you would be required to abstain, and in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. It is parenthetically noted that pursuant to Section 65606(a) of the Second Class Township Code, the compensation of a supervisor who is employed by the township must be set by the township board of auditors: Yeropoli, 11-529 May 24, 2011 Page 5 § 65606. Compensation of supervisors (a) … The compensation of supervisors, when employed as roadmasters, laborers, secretary, treasurer, assistant secretary, assistant treasurer or in any employe capacity not otherwise prohibited by this or any other act, shall be determined by the board of auditors, at an hourly, daily, weekly, semi-monthly or monthly basis, which shall be comparable to compensation paid in the locality for similar services…. 53 P.S. § 65606(a). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Supervisor for Mahoning Township (“Township”), 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) in 2008, the Township established a sanitation department (“the Sanitation Department”) for the construction and installation of a sanitation system and plant (“Sanitation System”) for Township residents; (2) since 2008, the Township Board of Supervisors (“Board”) has utilized independent contractors for purposes related to the construction of the Sanitation System; (3) it is anticipated that the Sanitation System will begin operating on September 1, 2011; (4) the Sanitation Department, which will report to the Board, will require the positions of sanitation secretary, sanitation treasurer, sanitation laborer, and sanitation operator (hereinafter collectively referred to as “Sanitation Department Workers”); and (5) the positions of the Sanitation Department Workers will be full-time and will be covered by union bargaining, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you from simultaneously serving as a Township Supervisor and in a particular position as a Sanitation Department Worker (that is, the position of sanitation secretary, sanitation treasurer, sanitation laborer, or sanitation operator) subject to the condition that such particular Sanitation Department Worker position would be an employment position within the Township. In each instance of a conflict of interest, you would be required to abstain, and in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 requestor 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, Yeropoli, 11-529 May 24, 2011 Page 6 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