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