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HomeMy WebLinkAbout11-534 Fox ADVICE OF COUNSEL June 27, 2011 Gregory S. Fox, Esquire Fox & Fox, P.C. 323 Sixth Street Ellwood City, PA 16117 11-534 Dear Mr. Fox: This responds to your letters dated April 1, 2011, and May 5, 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 present any prohibitions or restrictions upon a member and chairman of a municipal authority board with regard to being employed as an assistant laborer with the municipal authority. Facts: As Solicitor for the Wayne Township Municipal Authority (“Authority”), you have been authorized by William Quinn Metheny (“Mr. Metheny”), a Member and Chairman of the Authority Board, to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Authority was created pursuant to the Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq. Mr. Metheny is not paid for his services as Chairman of the Authority Board. You state that the Authority Board is considering hiring Mr. Metheny as an assistant laborer for the Authority, in which capacity he would be paid $10.50 per hour and would not receive any benefits. Mr. Metheny would work approximately ten hours per week as an assistant laborer, but it is likely that he would work additional hours during the time of an emergency such as a heavy rainfall. Based upon the above submitted facts, you ask whether the Ethics Act would permit Mr. Metheny to be employed as an assistant laborer with the Authority. 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 Fox, 11-534 June 27, 2011 Page 2 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 Member and Chairman of the Authority Board, Mr. Metheny is a public official as that term is defined in the Ethics Act, and therefore he is 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: Fox, 11-534 June 27, 2011 Page 3 § 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. 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. In Swick/Aman, Opinion 91-006, the State Ethics Commission determined that generally, Section 1103(a) of the Ethics Act would not prohibit a municipal authority board member from simultaneously serving in a compensated position of employment with the authority. The Commission concluded, however, that an authority board member could not use the authority of office by participating in or voting in favor of his own appointment to a position of employment with the authority, or by participating/voting in other matters concerning his employment such as salary raises, questions concerning his job performance, and the like. Having established the above general principles, your specific question shall now be addressed. You are advised that Section 1103(a) of the Ethics Act would not prohibit Mr. Metheny from simultaneously serving as a Member and Chairman of the Authority Board and as an assistant laborer employed by the Authority. Swick/Aman, supra. However, Mr. Metheny would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in or voting in favor of the appointment of himself to a position of employment with the Authority. Swick/Aman, supra. If appointed as an Fox, 11-534 June 27, 2011 Page 4 Authority employee, Mr. Metheny generally would have a conflict of interest in matter(s) before the Authority Board pertaining to his Authority employment or to individual(s) who would exercise authority over him with respect to his Authority employment. In each instance of a conflict of interest, Mr. Metheny 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 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 and Chairman of the Board of the Wayne Township Municipal Authority (“Authority”), William Quinn Metheny (“Mr. Metheny”) is 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) Mr. Metheny is not paid for his services as Chairman of the Authority Board; (2) the Authority Board is considering hiring Mr. Metheny as an assistant laborer for the Authority, in which capacity he would be paid $10.50 per hour and would not receive any benefits; and (3) Mr. Metheny would work approximately ten hours per week as an assistant laborer, but it is likely that he would work additional hours during the time of an emergency such as a heavy rainfall, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit Mr. Metheny from simultaneously serving as a Member and Chairman of the Authority Board and as an assistant laborer employed by the Authority. However, Mr. Metheny would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in or voting in favor of the appointment of himself to a position of employment with the Authority. If appointed as an Authority employee, Mr. Metheny generally would have a conflict of interest in matter(s) before the Authority Board pertaining to his Authority employment or to individual(s) who would exercise authority over him with respect to his Authority employment. In each instance of a conflict of interest, Mr. Metheny 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. 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 Fox, 11-534 June 27, 2011 Page 5 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