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HomeMy WebLinkAbout11-538 Klotz ADVICE OF COUNSEL June 29, 2011 Richard O. Klotz Borough Manager Borough of Bath 215 East Main Street Bath, PA 18014 11-538 Dear Mr. Klotz: This responds to your letters dated April 28, 2011, and May 6, 2011, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., a borough council member who resides in the borough’s historic district may simultaneously serve on the borough’s Historical Architectural Review Board. Facts: You have been authorized by Carol Baer-Heckman (“Ms. Baer- Heckman”), a Member of Council for the Borough of Bath (“Borough”), to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. Ms. Baer-Heckman currently resides in the Bath Historic District (“Historic District”). Ms. Baer-Heckman would like to serve on the Borough’s Historical Architectural Review Board (“HARB”). You state that HARB is an advisory board that only makes recommendations to Borough Council for final action by Borough Council. Appointments to HARB are approved by Borough Council. You have submitted a copy of the “Bath Borough Historic District Ordinance,” which sets forth powers and duties of HARB. You request an advisory as to whether Ms. Baer-Heckman may simultaneously serve as a Borough Council Member and Member of HARB. You state that Ms. Baer- Heckman would abstain from voting on her own appointment to HARB. You further state that Ms. Baer-Heckman would abstain on issues as to her own individual property. You note that rules, regulations, size of the Historic District and permitted colors affect the entire district as well as individual property(ies). 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 Klotz, 11-538 June 29, 2011 Page 2 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 this advisory is limited to addressing the sole question posed regarding simultaneous service. This advisory does not determine whether, as a Member of HARB, Ms. Baer-Heckman would be a public official subject to the Ethics Act or would have a conflict of interest in various matter(s) affecting the Historic District. You have not posed such questions. Additionally, the analysis of such questions would require the submission of additional facts. As a Borough Council Member, Ms. Baer-Heckman is a public official as that term is defined in the Ethics Act, and therefore she 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 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 Klotz, 11-538 June 29, 2011 Page 3 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 them to determine whether a conflict of interest exists under the Ethics Act based upon a statutory incompatibility. Corcoran, Opinion 08-003. Additionally, 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. However, 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. In this case, based upon the facts that have been submitted, there does not appear to be any statutorily-declared incompatibility or inherent conflict precluding Ms. Baer-Heckman ’s proposed simultaneous service as a Borough Council Member and HARB Member. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. 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…. Klotz, 11-538 June 29, 2011 Page 4 53 P.S. § 46104 (Emphasis added). On its face, Section 46104 of the Borough Code 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 submitted facts do not indicate whether Ms. Baer-Heckman would receive compensation as a HARB Member. Therefore, you are advised that to the extent the Borough Code would prohibit Ms. Baer-Heckman from receiving compensation as a HARB 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 . See, Confidential Opinion, 03-003. 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 Council for the Borough of Bath (“Borough”), Carol Baer-Heckman (“Ms. Baer-Heckman”) 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. Subject to the restrictions, conditions and qualifications set forth above, Ms. Baer- Heckman may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Member of Borough Council and as a Member of the Borough’s Historical Architectural Review Board. 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