HomeMy WebLinkAbout14-561 Confidential
ADVICE OF COUNSEL
December 16, 2014
14-561
This responds to your letters dated September 3, 2014, and November 5, 2014,
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 prohibitions or restrictions upon a member and
\[officer\] of a borough council with regard to receiving payment for performing duties as
the borough A.
Facts:
As Solicitor for \[name of borough\] (“Borough”), located in \[name of
county\], Pennsylvania, you have been authorized by Individual B to request a
confidential advisory from the Pennsylvania State Ethics Commission on her behalf.
You have submitted facts that may be fairly summarized as follows.
Per the 2010 census, the Borough has a population of approximately \[number
less than 3,000\].
Individual B is a Member and \[officer\] of Borough Council. Individual B receives
compensation in the amount of \[amount\] (gross) per month for serving as \[officer\] of
Borough Council.
Borough Council created the position of A. The A receives compensation in the
amount of \[amount\] (gross) per month for \[performing a certain function\]. You state that
the position of A is not specifically designated or defined in the Borough Code.
You state that the Borough could not locate an acceptable candidate for the
position of A for \[year\] and that Individual B therefore agreed to serve in such position
with no compensation. In \[month, year\], Individual B assumed the duties of the A
position.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit Individual B to receive compensation for performing duties as the A in addition to
receiving compensation for her duties as \[officer\] of Borough Council, and if so, whether
such compensation for performing A duties could be paid to Individual B retroactive to
\[month, year\].
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
Confidential Advice, 14-561
December 16, 2014
Page 2
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. In
this regard, based upon the submitted facts, this Advice assumes that the A position is
an employment position.
It is further initially noted that this advisory is limited to addressing the narrow
question posed.
As a Member and \[officer\] of Borough Council, Individual B is a public official
subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a)Conflict of interest.--
No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) 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
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.
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
Confidential Advice, 14-561
December 16, 2014
Page 3
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
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).
The Ethics Act defines the term “contract” as follows:
§ 1102. Definitions
"Contract."
An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Although the State Ethics Commission does not have the statutory jurisdiction to
interpret the Borough Code, the following pertinent provisions of the Borough Code
must be considered in order to determine whether the aforesaid proposed pay which
Individual B would receive for performing duties as the A would be considered a
pecuniary benefit or financial gain without authorization in law. (Cf., Confidential
Opinion, 03-003.)
At the time Individual B assumed the duties of the A position in \[month, year\], the
Borough Code provided, 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:
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December 16, 2014
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.
....
(c) Where there is no incompatibility in fact, and subject
to subsection (a) 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.
….
(g) Nothing contained in this section shall affect the
eligibility of any borough official to hold any other public
office or receive compensation therefor.
….
53 P.S. § 46104 (Emphasis added).
On April 18, 2014, Act 2014-37 was signed into law, amending and consolidating
the Borough Code effective 60 days thereafter. The Borough Code now provides, in
pertinent part, as follows:
§ 1104. Appointments and incompatible offices.
(a) General rule. —Unless there is incompatibility in fact, an 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 under the statute.
(b) Prohibition.
(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 employee of that borough.
….
(c) Multiple offices. —If there is no incompatibility in fact and subject to
subsection (a) 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, secretary or treasurer.
….
(h) Construction. —Nothing contained in this section shall be
construed to affect the eligibility of a borough official to hold any other
public office or receive compensation.
8 Pa.C.S. § 1104 (Emphasis added).
It is clear from the face of the above provisions of the Borough Code previously
in effect (53 P.S. § 46104) and currently in effect (8 Pa.C.S. § 1104) that an elected
borough official of a borough with a population of less than 3,000 may serve as an
employee of that borough. As noted above, the population of the Borough is
approximately \[number less than 3,000\], such that the Borough Code would not appear
to prohibit Individual B from being employed as the Borough A.
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December 16, 2014
Page 5
As for Section 1103(f) of the Ethics Act, the submitted facts are insufficient to
identify when Individual B entered into/would enter into a contract with the Borough as
to the A position.
Therefore, based upon the submitted facts, you are advised that Sections
1103(a) and 1103(f) of the Ethics Act would not prohibit Individual B from receiving the
aforesaid compensation payable to her retroactive to \[month, year\] and in the future for
performing duties as the Borough A subject to the conditions that: (1) Individual B
would not have used the authority of her position as a Member and \[officer\] of Borough
Council to obtain such pay; and (2) the restrictions and requirements of Section 1103(f)
of the Ethics Act would have been observed whenever applicable. See, Kistler v. State
Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011) (regarding the requirements for
an “open and public process”).
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
Based upon the submitted facts that: (1) per the 2010 census,
\[name of borough\] (“Borough”), located in \[name of county\], Pennsylvania, has a
population of approximately \[number less than 3,000\]; (2) Individual B is a Member and
\[officer\] of Borough Council; (3) Individual B receives compensation in the amount of
\[amount\] (gross) per month for serving as \[officer\] of Borough Council; (4) Borough
Council created the position of A; (5) the A receives compensation in the amount of
\[amount\] (gross) per month for \[performing a certain function\]; (6) the position of A is not
specifically designated or defined in the Borough Code; (7) the Borough could not locate
an acceptable candidate for the position of A for \[year\], and Individual B therefore
agreed to serve in such position with no compensation; and (8) in \[month, year\],
Individual B assumed the duties of the A position, and further based upon the
assumption that the A position is an employment position, you are advised as follows.
As a Member and \[officer\] of Borough Council, 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. Sections 1103(a) and 1103(f) of the Ethics Act would not
prohibit Individual B from receiving the aforesaid compensation payable to her
retroactive to \[month, year\] and in the future for performing duties as the Borough A
subject to the conditions that: (1) Individual B would not have used the authority of her
position as a Member and \[officer\] of Borough Council to obtain such pay; and (2) the
restrictions and requirements of Section 1103(f) of the Ethics Act would have been
observed whenever applicable. 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
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December 16, 2014
Page 6
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