HomeMy WebLinkAbout12-510
ADVICE OF COUNSEL
February 22, 2012
12-510
This responds to your letters dated December 13, 2011, and January 6, 2012, by
which you requested a confidential 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 member and
[officer] of a borough council with regard to simultaneously serving as the borough A.
Facts:
As Solicitor for [name of borough] (the “Borough”), located in [name of
county], Pennsylvania, you have been authorized by Individual B, who is a Member and
[officer] of Borough Council, to request a confidential advisory from the Pennsylvania State
Ethics Commission on his behalf. You have submitted facts that may be fairly summarized
as follows.
You state that the Borough has enacted a [type of ordinance], entitled the [title of
ordinance] (“Ordinance”), that broadly establishes and regulates Cs. You have submitted
a copy of the Ordinance, which document is incorporated herein by reference.
The Borough A, also referred to in practice as the Borough D, is charged with
enforcing the provisions of the Ordinance. The powers and duties of the Borough A are
set forth in [cite] of the Ordinance. You state that pursuant to the Ordinance, the Borough
A may: [perform certain enumerated functions]. The Borough A is a part-time position that
is paid [amount] per month.
You state that the Borough has a population of approximately [number less than
3,000].
Based upon the above submitted facts, you ask whether Individual B may
simultaneously serve as a Member and [officer] of Borough Council and the Borough A.
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
Confidential Advice, 12-510
February 22, 2012
Page 2
to the extent the requester has truthfully disclosed all of the material facts.
As a Member and [officer] of Borough Council, Individual B is 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 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 pertaining to conflicts of interest under the Ethics Act are
defined 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.
Confidential Advice, 12-510
February 22, 2012
Page 3
"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.
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.
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.
It is administratively noted that the Borough Code provides, in pertinent part, as
follows:
§ 46104. Appointments; incompatible offices
(a) 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.
(b) The following apply to employment:
(1) Except as set forth in paragraph (2), no
elected borough official of a borough with a
population of 3,000 or more may serve as an
employe of that borough.
(2) This subsection shall not apply to a
borough official serving as an employe of that
borough prior to the certification of a decennial
census which indicates an increase in the
population of that borough to 3,000 or more.
(c) Where there is no incompatibility in fact, and subject to
the foregoing provisions as to compensation, appointees of
council may hold two or more appointive borough offices, but
no mayor or member of council may serve as borough
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February 22, 2012
Page 4
manager or as secretary or treasurer.
. . .
(f) 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).
You are advised that there does not appear to be any statutorily declared
incompatibility that would preclude Individual B from simultaneously serving as a Member
and [officer] of Borough Council and the Borough A. Likewise, based upon the facts that
have been submitted, there does not appear to be an inherent conflict (see, McCain,
Opinion 02-009) that would preclude Individual B from simultaneously serving as a
Member and [officer] of Borough Council and the Borough A. Absent a statutorily declared
incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not
preclude simultaneous service in the aforesaid positions, but in each instance of a conflict
of interest, Individual B would be required to abstain fully from participation, and in the
instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act.
Although the Ethics Act would not prohibit Individual B from simultaneously serving
as a Member and [officer] of Borough Council and the Borough A, you are cautioned that
there are issues as to whether Individual B could receive any compensation for his
simultaneous service as the Borough A. Section 46104 of the Borough Code on its face
prohibits a borough council member from being compensated for serving in any borough
office created or authorized by statute. The determination of whether the position of
Borough A would be considered a borough office created or authorized by statute would
hinge upon an interpretation of the Borough Code. The State Ethics Commission does not
have the statutory jurisdiction to interpret the Borough Code.
Therefore, you are generally advised that to the extent the Borough Code would
prohibit Individual B from receiving compensation as the Borough A while serving as a
Member and [officer] of Borough Council, receipt of such unauthorized compensation could
form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Cf., [cites].
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
As a Member and [officer] of Council for [name of borough] (the
“Borough”), located in [name of county], Pennsylvania, Individual B 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 . Individual B may, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve as a Member and [officer] of Borough Council and the Borough A
subject to the restrictions, conditions and qualifications set forth above. To the extent the
Borough Code would prohibit Individual B from receiving compensation as the Borough A
while serving as a Member and [officer] of Borough Council, receipt of such unauthorized
compensation could form the basis for a conflict of interest under Section 1103(a) of the
Ethics Act. Lastly, the propriety of the proposed course of conduct has only been
addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, this 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
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February 22, 2012
Page 5
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