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Home My WebLink About13-588 Marks ADVICE OF COUNSEL December 23, 2013 Anthony Marks 1001 Neighbors Lane Irwin, PA 15642 13-588 Dear Mr. Marks: This responds to your letter dated November 18, 2013, 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., imposes prohibitions or restrictions upon a member and chairman of a township zoning hearing board with regard to simultaneously serving as: (1) a member of a municipal authority board; or (2) a member of a regional authority board. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. You are a Member and Chairman of the Penn Township Zoning Hearing Board (“Zoning Hearing Board”). The Penn Township (“Township”) Board of Supervisors appoints the Members of the Board of the Penn Township Sewage Authority (“Authority”), which is a separate entity from the Township. You are considering applying for a position on the Authority Board. The Township is also serviced by a regional sewage authority (“Regional Authority”) which has its office and treatment plant located outside of the Township. You seek guidance as to whether the Ethics Act would prohibit or restrict you from simultaneously serving as a Member and Chairman of the Zoning Hearing Board and: (1) a Member of the Authority Board; or (2) a Member of the Regional Authority Board. 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. It is further initially noted that your advisory request letter posed your questions Marks, 13-588 December 23, 2013 Page 2 broadly to encompass yourself and Zoning Hearing Board Members generally as well as service in any position that is appointed by the Township Supervisors. However, you did not establish legal standing to submit your inquiry as to anyone other than you, and as noted above, the Commission does not speculate as to facts that have not been submitted. Therefore, this advisory must be limited to addressing your own prospective conduct regarding appointment to a position on the Authority Board or the Regional Authority Board. As a Member and Chairman of the Zoning Hearing Board, 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 Marks, 13-588 December 23, 2013 Page 3 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 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. There does not appear to be any statutorily-declared incompatibility precluding simultaneous service as a Member and Chairman of the Zoning Hearing Board and: (1) a Member of the Authority Board; or (2) a Member of the Regional Authority Board. While the Pennsylvania Municipalities Planning Code provides that members of a zoning hearing board “shall hold no other elected or appointed office in the municipality” or be an employee of the municipality, 53 P.S. § 10903, the Authority Board and the Regional Authority Board would not be considered part of the Township. See, Commonwealth v. Lucas, 534 Pa. 293, 632 A.2d 868 (1993); Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 882 (1971). Turning to the question of conflict of interest, 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) of the Ethics Act. 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 an inherent conflict that would preclude your proposed simultaneous service as a Member and Chairman of the Zoning Hearing Board and: (1) a Member of the Authority Board; or (2) a Member of the Regional Authority Board. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Marks, 13-588 December 23, 2013 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member and Chairman of the Penn Township Zoning Hearing Board (“Zoning Hearing Board”), 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. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Member and Chairman of the Zoning Hearing Board and: (1) a Member of the Board of the Penn Township Sewage Authority; or (2) a member of the board of a regional sewage authority that services Penn Township. 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 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