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HomeMy WebLinkAbout90-535 SchlegelMr. Raymond C. Schlegel Law Offices Roland & Schlegel 627 North Fourth Street P.O. Box 902 Reading, PA 19603 -0902 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 12, 1990 90 -535 Re: Simultaneous Service, Borough Councilmember and Independent Municipal Authority Member. Dear Mr. Schlegel: This responds to your letter of February 19, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a borough councilmember from also serving or being employed as a independent municipal authority board member. Facts: On behalf of Richard Feicht who is a member of the West Berks Water Authority (WBWA) and who has recently been elected to the Borough Council of Wyomissing, you inquire as to whether Mr. Feicht may continue to receive compensation from WBWA. As a member of the WBWA since 1985, Mr. Feicht has received a yearly salary. On January 1, 1990, Mr. Feicht was elected as Councilmember to the Borough Council on Wyomissing. Wyomissing Borough Councilmembers are not compensated for their services. Mr. Feicht wishes to continue to receive compensation from WBWA. After referencing 58 Pa. C.S.A. 46104, you note that WBWA was not created by the Borough of Wyomissing according to Mr. Feicht but is in fact an independent municipal authority serving West Reading, Wyomissing, Shillington, and parts of other nearby communities. Mr. Feicht believes that the WBWA was not created solely for the Borough of Wyomissing which is evidenced by the fact that WBWA has six members, two of which are from West Reading, two from Wyomissing and two from Shillington. After expressing your view that Mr. Feicht could serve both as councilmember and water authority board member, you note that the question of whether he can receive compensation under the circumstances is unclear. Mr. Feicht has requested that his compensation from January 1990 be withheld pending resolution of this inquiry. You conclude by requesting advice as to whether Mr. Feicht can continue to receive compensation from the WBWA. Mr. Raymond C. Schlegel Page 2 Discussion: As a Borough Councilmember for Wyomissing, Mr. Feicht is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. 11402; 51 Pa. Code 111.1. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would Mr. Raymond C. Schlegel Page 3 be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if Mr. Feicht were to serve both as a public official /employee and as a Municipal Authority Board Member. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a municipal authority board member. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined above, Mr. Feicht would not be serving entities with interests which are adverse to each other. In addition, Section 3(a) of the Ethics Law would not prohibit Mr. Feicht from receiving his compensation from the WBWA which he has stated is an independent municipal authority. However, if a situation arises where Mr. Feicht or the respective entities he represents develop an adverse interest, then he must remove himself from that particular matter and disclose the nature of his interest in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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. Specifically not addressed in this advice is the applicability of the Borough Code or the Municipalities Authorities Act. Conclusion: As a Councilmember for Wyomissing Borough, Mr. Feicht is a "public official" subject to the provisions of the Ethics Law. As a public official /employee, Mr. Feicht may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Borough Councilmember and Independent Municipal Authority Member. Section 3(a) of the Ethics Law would not preclude Mr. Feicht from receiving compensation from the Independent Municipal Water Authority. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Mr. Raymond C. Schlegel Page 4 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code B2.12. Vincent J. Dopko, Chief Counsel