Loading...
HomeMy WebLinkAbout85-597 StoneHarland S. Stone, Esquire Stone, Specter & Stone 1705 Allegheny Building Pittshurgh, PA 15219 Dear Mr. Stone: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 November 2.1, 1985 ADVICE OF COUNSEL 85 -597 Re: Simultaneous Service, Borough Councilmemher, President, Council on Governments, Executive Director for Council on Government This responds to your letter of October 10, 1985, wherein you requested the Advice of the State Ethics Commission. Issue: Whether the president of a council on governments may he appointed as . the compensated executive director of that council when the individual is also councilperson from a member borough. Facts: You indicate that you serve as solicitor for the Quaker Valley Council on Governments and its president. The Quaker Valley Council on Governments, hereinafter COG, is a voluntary non - profit corporation composed of several boroughs, townships and municipal authorities. The COG was formed pursuant to the Intergovernmental Cooperation Law, See 53 P.S. .$481 et. seq. In accordance with to this law, two or more municipalities in the Commonwealth of Pennsylvania may jointly cooperate in the exercise or in the perfomance of their respective govenmental functions, powers or responsibilities. Generally, the purpose of a COG is to strengthen local government by hecoming a useful tool for dealing with local problems particularly those prohlems which are regional in nature. The types of functions performed hy a COG may generally range from the joint purchase of supplies to the operation of joint regional fire protection services or area -wide transit services. The COG's are funded, in part, hy the muncipalities that are memhers as well as through the receipt of financial assistance from other governmental organizations, such as the Pennsylvania Department of Community Affairs. Generally, the COG is operated by representatives from each of the municipal organizations that make up the COG. From those member representatives, the COG will generally select a chairman or president and vice - chairman or vice - president. This is the position that you have indicated is held by your client. Harland S. Stone, Esquire November 21, 1985 Page 2 The executive director of the COG has recently resigned. The board of the COG has voted to have its president assume the duties of the executive di rector on a temporary basis until a new executive di rector could be hi red. The board has also voted to compensate the president for assuming the duties of the executive director during this period. The salary to he received by the president is the same salary which was received by the former director. You also indicate that the COG president is a member of a borough council from a borough that is a member of the COG. You indicate that at the time the board took this action, the president disclosed her various positions to the board and refrained from discussing the motion and abstained from the final vote. The president has also agreed to perform the director's duties without receiving any salary or other compensation pending the receipt of the advice of the State Ethics Commission. Specifically, you ask whether the board may vote to have its president assume the duties of the executive director without running afoul of the State Ethics Act. In addition, you ask if this person may receive compensation in this new position. Discussion: To date, the State Ethics Commission has not ruled upon the issue of whether a member of a council on governments is a public official within the purview of the Ethics Act. There is no doubt, however, that as a borough official, this person would be a public official within the meaning of the State Ethics Act. See 65 P.S. $402; See Damian, 79 -057; Davis, 84 -012. Thus, as a public official, this individual must conform to the requirements of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to insure the public that the financial interest and activities of their public officials neither conflict nor appear to conflict with the public trust. 65 P.S. .5401. In light of this, the Act provides that: Section 3. Restricted activities. (a) No 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). In order to determine whether a public official would be in violation of this provision of the State Ethics Act, the Commission must determine if the public official's activity results in the securing of a financial gain that is not part of the compensation provided for by law. Generally, the compensation provided by law for public official is set forth in the various statutory enactments creating the public position. Harland S. Stone, Esquire November 21, 1985 Page 3 The compensation to be paid to a borough official is specifically set forth in the Borough Code and provides as follows: Councilmen may receive compensation to he fixed by ordinance at any time and from time to time as follows: in boroughs with a population of less than five thousand, a maximum of fifteen hundred dollars ($1500) a year; in boroughs with a population of five thousand or more but less than ten thousand, a maximum of two thousand dollars ($2000) a year; in boroughs with a population of ten thousand or more but less than fifteen thousand, a maximum of twenty -six hundred dollars ($2600) a year; in boroughs with a population of fifteen thousand or more but less than twenty -five thousand, a maximum of thirty -three hundred dollars ($3300) a year; in boroughs with a population of twenty -five thousand or more but less than thirty -five thousand, a maximum of thirty -five hundred dollars ($3500) a year; and in boroughs with a population of thirty -five thousand or more, a maximum of four thousand dollars ($4000) a year. Such salaries shall be payable monthly or quarterly for the duties imposed by the provisions of this act. 53 P.S. .546001, as amended by Act 1985 -67, Oct. 31, 1985. In addition to the foregoing, the Borough Code further provides that: Unless there is incompatibility in fact, any elective or appointive officer of the borough shall he 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 councilman shall receive compensation therefor. (sic) 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. A review of the purpose behind the formulation of a COG as set forth in the facts above, indicates clearly that the council is indeed a board that is, in part, created by the borough and for the borough and that the position of executive director of the COG is an appointed position created under the COG. Thus, it appears as though, based upon the foregoing provision of law, that a borough councilmemher would be prohibited from receiving any compensation for service as the executive director of a COG. Thus, the Harland S. Stone, Esquire November 2.1, 1985 Page 4 payment of such a salary to a borough councilmember who serves as executive director of a COG, would be financial gain other than the compensation that is provided by law. In fact, such compensation would be expressly prohibited by the Borough Code. It should also he noted that while we are not addressing the issue of whether these position would be incompatible under the Rorough Code, we do note that by this councilperson serving in both a position on the hoard, i.e. its president as well as the executive director of the COG, substantial potential conflicts of interest may develop. The president of the COG is responsible for the general policy operation of the COG and is a representative of the member municipality. The executive director of the COG is responsible for the day -to -day activity and implementation of that policy. As president of the COG, this individual would he responsible for insuring that the executive director performed in a manner that was competent and in the best interests of the COG and the member municipalities. As such, this member of the COG would be in a position of having to review on an almost constant basis her own performance as executive director. In similar situations, we have ruled that public officials in such a position should abstain from reviewing or participating any action that involves matters that have been handled, processed, or relates to themselves. Based upon the review of the job description of the executive director, which you have provided for review and which we hereby incorporate by reference, it appears as though the president of the COG would have to abstain from virtually reviewing all COG activity as it would constitute a review of her own work as executive director. It is thus advised that the previously stated concerns regarding participation in such matters should be implemented. Additionally, we note that the members of the COG have the discretionary power of appointing the executive director. Our review of general case authority in Pennsylvania indicates that where public officials are vested such discretionary powers, it is against public policy for such officials to utilize such discretionary authority to appoint one of their own members to a position under the authority of the public official. See Mixell v. Hillertown Borough, 370 Pa. 420, 88 A.2d 594, (1952); Raynovich v. Romanus, 450 Pa. 391, 299 A.2d 301 (1973); Department of State v. Mount Joy Borough, 66 0 &C 251, (1948);, McCreary v. Major, 343 Pa. 355 22 A.2d 686 (1941). Finally, we must address the issue of whether abstention from action regarding appointing and fixing compensation for herself as executive director alleviates the concerns addressed in this advice. While we acknowledge that this individual took no official action in her own behalf regarding this matter, we have previously ruled that the Ethics Act would prevent a public official from knowingly accepting in his or her public position and as part of that position, compensation in excess of that provided for by law. See flomalakes, 85 -010. We have determined that such a knowi ng acceptance of Harland S. Stone, Esquire November 21, 1985 Page 5 compensation to which one is not entitled would present a conflict between the official 's personal interest and that of his puhlic position where he is to serve the interest of the puhlic. Because it appears that the compensation that this person would have received as executive director, is prohibited by the Borough Code, we believed that acceptance of that compensation even though the individual did not participate in the award of that compensation to herself, would occasion a violation of the State Ethics Act. Conclusion: A Borough Councilperson who is also the president or chairman of the hoard of a council on governments may not receive compensation for duties performed as executive di rector of that council . While we do not address the issue of whether these positions are inherently incompatible, we do note that if this person serves in the position of both COG president and executive director, she should abstain from participation in any matter that relates to or involves actions of the executive director. 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. JJC /sfb 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 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. Si nc ohn J. . ino Gener. Counsel