Loading...
HomeMy WebLinkAbout89-510 BryanMayor James P. Bryan 11 Park Street North East, PA 16428 Dear Mr. Bryan: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 1, 1989 89 -510 Re: Conflict of Interest, Borough Mayor, Public Official, Appointment of Mayor's Son as Solicitor This responds to your letter of January 30, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether a non compensated borough mayor is a public official subject to the provisions of the Ethics Act and, if so, what restrictions the Ethics Act imposes upon the mayor regarding the appointment of his son as solicitor to the borough. Facts: You state that on January 28, 1989, you were appointed Mayor of the Borough of North East by the Borough Council after the prior Mayor had resigned. After noting that your appointment extends through the period of 1990 at which time a new Mayor will be elected, you state that no salary, wage or compensation of any type is paid to the Mayor of North East. Prior to your appointment, you indicate that you were the Assistant Solicitor for the Borough of North East but submitted your resignation which was effective as of the date of your appointment as Mayor. You then note that your son James S. Bryan is and has been the Solicitor of the Borough of North East wherein his appointment was most recently confirmed at the January, 1989 reorganizational meeting of Borough Council. You advise that the appointment is at the will of Borough Council and that the salary is in excess of $500 per year. You state that the next scheduled review of the appointment of solicitor will be at the January, 1990 reorganizational meeting which will follow the next Mayoral election. You then conclude by asking four questions under the Ethics Act: 1. Whether you as an appointed non- compensated Mayor of North East are a public official under the Ethics Act; 2. Whether the relationship between the Borough and your son as Solicitor is contractual under Section 3(c) of the Ethics Act; 3. Whether, if the appointment for Solicitor is subject to Section 3(c) of the Ethics Act, that Section would be implicated at the time of review and renewal of the appointment, and 4. Whether the appointment for the Solicitor in January, 1990 would be subject to Section 3(c) of the Ethics Act since it would occur after your successor takes the oath of office as Mayor. Discussion: As the appointed Mayor of North East, you are a "public official" ..h t term is defined 'ender the Ethics Act. 65 P.S. 5402; 51 Pa. Code S1.1. The term public official is defined under the Ethics Act as follows: Section 2. Definitions. "Public Official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. "Public Official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. S402. You, however, question whether you are a public official in light of the fact that you are appointed to office and receive no compensation. In Snyder v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981), the Pennsylvania Supreme Court held the definitional phrase "public official" unconstitutional insofar as it operated to exempt appointed /non- compensated officials from Ethics Act coverage. Thus, the Court's decision had the effect of removing the appointed /non- compensated exclusion from the Ethics Act. Therefore, you as an appointed non - compensated Borough of North East are a public official as that term has been interpreted under decisional law in Pennsylvania. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official7employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. As a public official, you could not use public office or confidential information to advance the appointment of your son to the position of borough solicitor. However, if North East Borough has the practice whereby the Mayor does not vote other than to break a tie, you would not be using public office because you would not be participating or voting regarding his appointment. However, in the event that a tie would occur and you would be called upon to vote, you would have to recuse yourself and note that of record since you would have to abstain regarding the appointment of your son under the Ethics Act. See Leete, Opinion 82 -005. As to the three remaining questions that you pose, such questions may not be addressed in this advice for the following reason. The authority of the Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Act is limited by statute, (65 P.S. 407(9)(i) and (ii)), to those persons who request it relative to their duties. Thus, the Commission cannot issue an opinion /advice to a third party concerning the duties of some other person under the Ethics Act. Since the three questions you pose relate to the actions of borough council and their conduct regarding the appointment of your son as solicitor, those questions may not be addressed in this advice. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As the appointed non - compensated Mayor of North East, your are a public official subject to the provisions of the Ethics Act. Under the Ethics Act, you may not participate or vote regarding a matter concerning the appointment of your son as Solicitor. The foregoing would not appear to have application in this case since generally the position of Mayor is non - voting. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as 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 S2.12. incerely, Vincent 7. Dopko, General Counsel