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HomeMy WebLinkAbout12-545 Lewis ADVICE OF COUNSEL June 7, 2012 Frank J. Lewis Hulmeville Borough 321 Main Street Hulmeville, PA 19047 12-545 Dear Mr. Lewis: This responds to your letter of April 26, 2012, 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 with regard to simultaneously serving as the borough code enforcement officer/zoning officer. Facts: You were recently elected as a Member of Council for Hulmeville Borough (“Borough”), located in Bucks County, Pennsylvania. The Borough has a population of slightly less than 1,000. You state that you previously served as a Borough Code Enforcement Officer/Zoning Officer, in which capacity you received compensation in the amount of $500.00 per year. You state that Borough Council is inclined to allow you to continue to serve as a Borough Code Enforcement Officer/Zoning Officer if such would not be prohibited. You state that as Borough Code Enforcement Officer/Zoning Officer, you would not be an employee of the Borough, but rather, a paid independent contractor. You seek guidance as to whether you may simultaneously serve as a Borough Council Member and a Borough Code Enforcement Officer/Zoning Officer in the capacity of a paid independent contractor. 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. Lewis, 12-545 June 7, 2012 Page 2 As a Member of Borough Council, 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 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. Lewis, 12-545 June 7, 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. 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. Section 10614 of the Pennsylvania Municipalities Planning Code provides, in pertinent part, as follows: “For the administration of a zoning ordinance, a zoning officer, who shall not hold any elective office in the municipality, shall be appointed….” 53 P.S. § 10614 (Emphasis added). Sections 46104 and 46404 of the Borough Code provide in 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: Lewis, 12-545 June 7, 2012 Page 4 (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 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. § 46404. Penalty for personal interest in contracts or purchases Except as otherwise provided in this act, no borough official either elected or appointed, who knows or who by the exercise of reasonable diligence could know, shall be interested to any appreciable degree either directly or indirectly in any purchase made or contract entered into or expenditure of money made by the borough or relating to the business of the borough, involving the expenditure by the borough of more than one thousand dollars ($1000) in any calendar year, but this limitation shall not apply to cases where such officer or appointee of the borough is an employe of the person, firm or corporation to which the money is to be paid in a capacity with no possible influence on the transaction, and in which he cannot be possibly benefited thereby either financially or otherwise. But in the case of a member of council or mayor, if he knows that he is within the exception just mentioned he shall so inform council and shall refrain from voting on the expenditure or any ordinance relating thereto, and shall in no manner participate therein. Any official or appointee who shall knowingly violate the provisions of this section shall be subject to surcharge to the extent of the damage shown to be thereby sustained by the borough and to ouster from office, and shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine not exceeding one thousand dollars ($1000), or not exceeding one hundred eighty days' imprisonment, or both. 53 P.S. § 46404. Lewis, 12-545 June 7, 2012 Page 5 You are advised that Section 10614 of the Pennsylvania Municipalities Planning Code appears to forbid simultaneous service in the positions of Borough Council Member and Borough Zoning Officer. Any compensation or other financial gain or pecuniary benefit that you would receive while simultaneously holding the positions of Borough Council Member and Borough Zoning Officer would be a gain other than compensation provided for by law. Therefore, you are advised that you may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Borough Council Member and Borough Zoning Officer to the extent you would receive compensation in either position. As for the position of Borough Code Enforcement Officer, you are advised that there does not appear to be any statutorily declared incompatibility that would preclude you from simultaneously serving as a Borough Council Member and a Borough Code Enforcement Officer. 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 you from simultaneously serving as a Borough Council Member and a Borough Code Enforcement Officer. Absent a statutorily declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude simultaneous service as a Borough Council Member and a Borough Code Enforcement Officer, but in each instance of a conflict of interest, you 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 you from simultaneously serving as a Borough Council Member and a Borough Code Enforcement Officer, you are cautioned that there are issues as to whether you could receive any compensation for your simultaneous service as a Borough Code Enforcement Officer. 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 Code Enforcement Officer 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. It is additionally noted that Section 46404 of the Borough Code on its face imposes limitations on contracting between borough officials and the boroughs they serve. Therefore, you are generally advised that to the extent the Borough Code would prohibit you from receiving compensation as a Borough Code Enforcement Officer while serving as a Borough Council Member, receipt of such unauthorized compensation could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Cf., Rowan, Advice 08-549; Spruill, Advice 06-512. Finally, you are advised that the restrictions and requirements of Section 1103(f) of the Ethics Act must be observed whenever applicable. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f)Contract.-- No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is Lewis, 12-545 June 7, 2012 Page 6 associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. You are advised that if the Borough Code would permit you to receive compensation as a Borough Code Enforcement Officer while serving as a Borough Council Member, the restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed to the extent your contract with the Borough to serve as Borough Code Enforcement Officer would be valued at $500.00 or more. The propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As a Member of Council for Hulmeville Borough (“Borough”), located in Bucks County, Pennsylvania, 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. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Borough Council Member and Borough Zoning Officer to the extent you would receive compensation in either position. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Borough Council Member and a Borough Code Enforcement Officer subject to the restrictions, conditions and qualifications set forth above. To the extent the Borough Code would prohibit you from receiving compensation as a Borough Code Enforcement Officer while serving as a Borough Council Member, receipt of such unauthorized compensation could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. The restrictions and requirements of Section 1103(f) of the Ethics Act must be observed whenever applicable. 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, 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 Lewis, 12-545 June 7, 2012 Page 7 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