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Home My WebLink About84-575 Viscinski WozniakMessrs. Vicinski and Wozniak c/o Anthony J. Martin Martin & Martin Law and Commerce Building Monroe Complex Monroeville, PA 15146 Mailin Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 20, 1984 ADVICE OF COUNSEL. RE: Conflict of Interest; Municipal Council; Municipal Authority; Appointment; Son, wife State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 84 -575 Dear Messrs. Vicinski and Wozniak: This responds to counsel's letter of May 3, 1984, in which you requested advice from the State Ethics Commission. Although Mr. Martin is Solicitor for the Authority you have authorized him to seek this Advice on your behalf. Issue: The question is whether two members of a municipal council, in which the council is separate and distinct from a municipal authority, may vote to appoint a member to the municipal authority board where one councilman has a self- supporting son who works for the authority and the other councilman has a spouse who also works for the authority. Facts: The Municipality of Monroeville has a Municipal Council, hereinafter the Council, comprised of seven councilmen. One of the Council's responsibilities is to appoint members to the Monroeville Water Authority Board, hereinafter MWAB or the Board, which has the responsibility for operating the Monroeville Water Authority (MWA) or the Authority. The MWAB is a body which is separate and distinct from the Council consisting of five members. All employees of the MWA are hired by the Board or the MWA Manager and are mostly subject to the collective bargaining agreement with the Union representing the Authority employees. At a recent meeting of the Council, the Council had before it the question of the appointment of one board member to the MWAB. However, as Councilmembers, with family members employed by the Authority, you were denied the right to vote for the appointment of the MWAB member. Mr. Vicinski's wife works for the Authority in the capacity as a billing clerk. Mr. Wozniak's son is employed by the Authority in the capacity as a customer service representative. This son is neither a minor, nor a dependent and does not Messrs. Vicinski and Wozniak June 20, 1984 Page 2 live with Mr. Wozniak. This ruling was made by the Council's solicitor without having the opportunity to or benefit of research in light of the Conflict of Interest provisions of the Municipal Home Rule Charter which would appear to restrict both of you from voting because of the employment of your family members by the MWA. Thereafter, the solicitor for the MWA, Mr. Anthony J. Martin, with your approval, submitted a reginst to the State Ethics Commission for a ruling on the situation in eight of the necessity of future votes on appointments of MWAB members. Discussion: Initially, the Ethics Commission notes that its jurisdiction and its power are strictly limited to the authority granted it in 65 P.S. Section 401 et seq. Thus, it has no authority to interpret or enforce the provisions of other codes, such as the Conflict of Interest.provisions of a Municipal Home Rule Charter or the Municipalities Authorities Act, and this advice should not be construed as "clearance" to act under regulations, ordinances, and charters or laws other than the Ethics Act. With regard to the situation at hand, Attorney Martin has provided us with thorough and exhaustive discussion and research on this question. We will, howeVer, add some comments of our own. Specifically, the three Sections of the Ethics Act which might have any applicability to the situation at hand include 65 P.S. 403(a), 403(b) and 403(c). Section 403(a) provides: (a) Mo public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Although Section 3(a) appears to be applicable to this situation, it is clear, as Attorney Martin points out, that voting on appointment of an MWAB member will have no affect on the employment of either the son or the wife in light of the existing labor contract by which they are both covered especially in light of the fact that the Council and the MWA/MWAB are separate and distinct governmental bodies. Thus, there is no inherent conflict if these Councilmen vote to appoint a member to the MWAB. We assume, of course, that there is adherence to the requirements of Section 3(b) of the Ethics Act which provides: Messrs. Vicinski and Wozniak June 20, 1984 Page 3 (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65. P.S. 403(b). Section 3(b) would be implicated if a Councilman were to vote to appoint a certain candidate to the MWAB with the understanding that the councilman's family member would have continuing employment with the Authority. We mention this Section of the Ethics Act not to imply any impropriety or suggest that the Commission believes that Section 3(b) has been or will be violated in this case, but to provide a complete response to your question. The last Section of the Ethics Act possibly relevant to this situation tip; Section 3(c) which provides: (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body 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. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). Section 3(c) of the Ethics Act is triggered when an official or his immediate family member seeks to contract with the body with which the official is associated. The key factor in analyzing this situation in light of Section 3(c) is that the Council and the MWA /MWAB are separate and distinct governmental bodies. As Council members you are associated with the Council and not the Authority. Likewise, your son and wife respectively have contracted with the Authority, not the Council. Section 3(c) is inapplicable to this situation. In addition to the cases supporting this conclusion cited by Mr. Martin see also Forney v. State Ethics Commission, 56 Pa. Cmwlth. 539, 425 A.2d 66 (1981), which states authorities are not "creatures" of the incorporating municipalities. Messrs. Vicinski and Wozniak June 20, 1984 Page 4 Conclusion: Under the Ethics Act, as members of the Council who have family members employed by the MWA, which is a separate and distinct body from Council, you would not be precluded from voting on the appointment of a MWAB member so long as this conduct conforms to the discussion above. You are cautioned, however, that this advice constitutes an interpretation of the Ethics Act only and does not serve as clearance to act under the Conflict of Interest Provision of the Municipal Home Rule Charter or other statutes. Pursuant to Section 7(9)(ii), 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp Sincerely, andra S. ri 1 ianson General Couns