HomeMy WebLinkAbout16-004 GorehamOPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Kathryn Streeter Lewis
Maria Feeley
Melanie DePalma
DATE DECIDED: 6/23/16
DATE MAILED: 7/8/16
16 -004
Honorable Elizabeth A. Goreham, Mayor
Borough of State College
243 South Allen Street
State College, PA 16801 -4806
Dear Mayor Goreham:
This Opinion is issued in response to your letter dated March 15, 2016, 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 restrictions upon the mayor of a home -rule municipality with
regard to collecting payments /honoraria for performing marriage ceremonies.
II. FACTUAL BASIS FOR DETERMINATION:
You request an advisory from the Pennsylvania State Ethics Commission based
upon submitted facts that may be fairly summarized as follows.
You are Mayor of the Borough of State College ( "Borough "). The Borough is a
home rule municipality operating under the terms and provisions of the Borough of State
College Home Rule Charter ( "Borough Home Rule Charter ").
You are currently evaluating the possibility of charging a monetary fee for
performing marriage ceremonies as Borough Mayor. You state that recently various
statutes have been enacted that allow mayors to charge for performing marriage
ceremonies, but none of these statutes specifically mention home -rule municipalities. You
ask whether you would be permitted to collect payments /honoraria for performing marriage
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July 8, 2016
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ceremonies.
By letter dated May 16, 2016, you were notified of the date, time and location of the
public meeting at which your request would be considered.
We take administrative notice of the following provision of the Borough Home Rule
Charter:
Section 405. Compensation of Elected Officers.
Elected officers may receive compensation as shall be fixed by
Council from time to time, but such compensation or any
change therein shall not become applicable to any incumbent
officer until the commencement of a new term of office.
Borough Home Rule Charter, Article IV, Section 405.
III. 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, this 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.
As Borough Mayor, you are 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 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
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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, it is a conflict of interest fora public
official to use the authority of his /her public office for private financial gain (see, Kistler v.
State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011), such as unauthorized
compensation (see, Russell v. State Ethics Commission, 987 A.2d 835 (Pa. Cmwlth. 2009),
alloc. denied, 607 Pa. 708, 4 A.3d 1056 (2010).
Additionally, Section 1103(d) of the Ethics Act expressly prohibits a public
official /public employee from accepting an honorarium:
§ 1103. Restricted activities.
(d) Honorarium. - -No public official or public employee
shall accept an honorarium.
65 Pa.C.S. § 1103(d).
The Ethics Act defines the term "honorarium" as follows:
§ 1102. Definitions
"Honorarium." Payment made in recognition of
published works, appearances, speeches and presentations
and which is not intended as consideration for the value of
such services which are nonpublic occupational or
professional in nature. The term does not include tokens
presented or provided which are of de minimis economic
impact.
65 Pa.C.S. § 1102
A monetary payment would not fall within the exception to the definition of
"honorarium" for "tokens" of a de minimis economic impact. Crompton, Opinion 09 -002.
In 2003, this Commission issued Keller, Order 1282, holding that a borough mayor
violated Section 1103(a) of the Ethics Act when he received payments for performing
marriage ceremonies and deposited those funds into his personal bank account. At the
time Keller was issued, the Borough Code did not authorize a borough mayor to accept a
monetary fee for performing marriages. This Commission's decision in the Keller case was
affirmed by the Commonwealth Court of Pennsylvania. Keller v. State Ethics Commission,
860 A.2d 659 (Pa. Cmwlth. 2004).
Subsequently, the Borough Code was amended and codified, and Section 10A05 of
the Borough Code now provides as follows:
§ 10A05. Salaried mayor not to receive certain fees.
(a) General rule,
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Except as provided in subsection (b), any salary paid
under an ordinance shall be in lieu of all costs and fees
allowed by a mayor. Costs and fees shall be collected
by the mayor and deposited into the borough treasury.
(b) Marriage ceremony fees.
(1) Nothing in this part shall be construed to prevent
a mayor from receiving a monetary fee for the
performance of a marriage ceremony in this
Commonwealth, if the fee does not exceed $150
for each ceremony performed.
(2) Prior to performing these ceremonies, the mayor
shall notify council in writing of the mayor's
intention to perform marriage ceremonies.
(3) The notification to council shall remain in effect
for the term of the mayor or until the notification
is rescinded by the mayor.
(4) The mayor shall maintain accurate accounts of
the fees received relating to the performance of
marriage ceremonies and provide council each
quarter with a report of money received for that
period. The quarterly report shall include the
amount of money received and the names of
persons from whom money was received, along
with the date and the location of the performed
ceremony, and the quarterly report shall be
considered a public record.
(5) The receipt of a fee under this subsection shall
not be considered a violation of 65 Pa.C.S. Ch.
11 (relating to ethics standards and financial
disclosure) and shall not be considered
compensation under this part.
8 Pa.C.S. § 1OA05 (Emphasis added).
There is presently no provision of law expressly authorizing the mayor of a borough
that is a home -rule municipality to receive a monetary fee for performing a marriage
ceremony, and only a court would have jurisdiction to decide, under current law, whether
Section 1OA05 of the Borough Code, 8 Pa.C.S. § 10A05, applies to the Borough as a
home -rule municipality. Cf. Ziegler v. City of Reading 2016 Pa. Commw. LEXIS 178 (Pa.
Cmwlth. April 20, 2016).
Additionally, the Borough Home Rule Charter does not expressly authorize the
Borough Mayor to receive a monetary fee for performing marriage ceremonies, and
Section 405 of the Borough Home Rule Charter provides that the compensation of elected
officers shall be fixed by Borough Council and that a change in the compensation of an
elected officer of the Borough shall not become applicable to any incumbent officer until
the commencement of a new term of office. Borough Home Rule Charter, Article IV,
Section 405.
Unless there is valid legal authorization for you as Borough Mayorto collectfees for
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performing marriages, you have no legal authority to do so, and unauthorized fees would
constitute private financial gain and prohibited honoraria for purposes of applying Sections
1103(a) and 1103(d) of the Ethics Act, 65 Pa.C.S. §§ 1103(a), 1103(d).
Based on the above, this Commission is limited to providing the following response
to your advisory request. Since the Borough Home Rule Charter and Borough Council
have not expressly authorized the Borough Mayor to accept payments for performing
marriage ceremonies, the Ethics Act would prohibit you from accepting payments for
performing marriage ceremonies unless: (1) Section 10A05 of the Borough Code, 8
Pa.C.S. § 10A05, applies to the Borough; and (2) your acceptance of payments for
performing marriage ceremonies would occur in a manner that would comply with both
Section 10A05 of the Borough Code and the Borough Home Rule Charter.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
IV. CONCLUSION:
As Mayor of the Borough of State College ( "Borough "), 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 seg. Based upon the submitted facts that: (1) the Borough is a home
rule municipality operating under the terms and provisions of the Borough of State College
Home Rule Charter ( "Borough Home Rule Charter ") - and (2) you are currently evaluating
the possibility of charging a monetary fee for performing marriage ceremonies as Borough
Mayor, you are advised as follows.
Unless there is valid legal authorization for you as Borough Mayorto collectfees for
performing marriages, you have no legal authority to do so, and unauthorized fees would
constitute private financial gain and prohibited honoraria for purposes of applying Sections
1103(a) and 1103(d) of the Ethics Act, 65 Pa.C.S. §§ 1103(a), 1103(d). Since the
Borough Home Rule Charter and Borough Council have not expressly authorized the
Borough Mayor to accept payments for performing marriage ceremonies, the Ethics Act
would prohibit you from accepting payments for performing marriage ceremonies unless:
(1) Section 10A05 of the Borough Code, 8 Pa.C.S. § 10A05, applies to the Borough; and
(2) your acceptance of payments for performing marriage ceremonies would occur in a
manner that would comply with both Section 10A05 of the Borough Code and the Borough
Home Rule Charter.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such
By the Commission,
Nicholas A. Colafella
Chair