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HomeMy WebLinkAbout84-598 SimonMr. John Andrew Simon Secretary Renovo Borough Council Borough Building Fifth Street Renovo, PA 17764 Dear Mr. Simon: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 14, 1984 84 -598 Re: Secretary- Treasurer, Program Administrator, Simultaneous Service This responds to your letter of August 6, 1984, in which you requested Advice from the State Ethics Commission. Issue: You ask whether you may serve simultaneously as the Borough's Secretary- Treasurer and be considered for and accept a position as a program administrator for the Borough. Facts: By your letter of July 13, 1984 and your letter of August 6, 1984, you indicate that you currently serve as the Secretary- Treasurer for the Borough of Renovo, hereinafter, the Borough. You indicate that the Borough has considered hiring a program administrator and you wish to know whether you may be considered for employment for that position. You also indicated that you currently serve as a part -time Secretary and as such you are required to attend all meetings of Borough Council and keep full minutes of the proceedings of the Borough Council in addition to having custody of the Borough seal. As part -time Treasurer, your duties consist of keeping accurate account of all the receipts and disbursements of the Borough and to annually submit an account to the Borough's auditors. As Treasurer, you are also required to deposit all Borough monies received by you in the bank named by the Borough as depository. You are responsible for the disbursement of Borough funds and all expenditures paid out of the Borough accounts. However, such disbursements can be made by you only when authorized by you as Treasurer, upon order signed by the president of Borough Council and the Borough Secretary. Mr. John Andrew Simon August 14, 1984 Page 2 You indicate that if the Borough were to hire a program administrator, this individual would be required to guide the daily management, applicant intake, and financial interviewing and budgeting and general supervision of the particular program in question. You indicate that the individual hired or selected as the program administrator would be hired and selected under the authority of and by Borough Council. Discussion: The basic question to be answered in this matter is whether or not you are to be considered a "public employee" or "public official" as those terms are defined in the State Ethics Act and regulations of the Commission. See 65 P.S. 402 and 51 Pa. Code 1.1. It has been stated in the regulations of the Commission that a secretary - treasurer, when acting as a manager for a municipality should be generally considered to be a "public employee." However, where a person is serving as a secretary - treasurer and does not perform the functions of a "manager" for a municipality, the determination may be different. From the description which you have presented, it is apparent that your duties as a secretary - treasurer are essentially ministerial and do not involve any exercise of discretion other than adherence to the requirements of the Council. Your actions are taken in accordance with the mandate of Council's directions and legal authority. As such, we can initially conclude that you are not to be considered a "public official" or "public employee" in your capacity as Secretary- Treasurer of the Borough. Accordingly, under such circumstances, you would not necessarily be bound by the requirements of the State Ethics Act with regard to your further employment by the Borough. Even assuming, for the sake of argument, that you were to be considered a "public employee" or "public official" while serving as Secretary- Treasurer for the Borough, we can state that the Ethics Act does not totally preclude your simultaneous service in this capacity and as program administrator for the Borough. Specifically, even if your activities were to be regulated by Section 3(a) or 3(c) of the Ethics Act, 65 P.S. 403(a) and 403(c) respectively, you could simultaneously serve in the capacity as Secretary- Treasurer and program administrator assuming that there was no inherent conflict between these posts. The Ethics Commission has stated that a conflict of interest exists when you, in both capacities, would be required to serve interests which are adverse to each other. See Alfano, 80 -007. Under the circumstances as outlined above, it does not appear that the interests which you would serve as Secretary- Treasurer and as program administrator would be adverse to each other. Rather, the interests to be served by the person serving in these positions would appear to be consistent with and complimentary to the interests of the Borough, in general. Mr. John Andrew Simon August 14, 1984 Page 3 Finally, if you were to be considered a "public official" or "public employee" and be subject to the requirements of Section 3(c) of the Ethics Act insofar as you might seek to contract with or assume additional duties under a new type of employment arrangement with the Borough as program administrator the only additional caution we would present would be that the Borough should consider engaging in an open and "public process with respect to solicitation of applications for and the hiring of a program administrator. Specifically, Section 3(c) of the Ethics Act, if applicable to this situation, would require that should you wish to enter into another contract with the Borough and to serve the Borough as program administrator, persons who would seek to compete with you for appointment for this position should be given notice of the opportunity and a reasonable amount of time in which to submit applications for securing this employment. See Cantor, 82 -004 and Fields, 82 -006. However, given our conclusion as stated above, that you are not to be considered a "public employee" or a "public official ", the open and public process requirements of Section 3(c) of the Ethics Act would not be strictly applicable to this situation under which you may be asked to perform additional services for the Borough as program administrator or under which you might seek to secure additional employment with the Borough as program administrator. Thus, the discussion here as to Section 3(c) of the Ethics Act is advisory only insofaras it is not mandatory that the open and public process requirements of Section 3(c) be applied to the Borough's consideration of and possible selection of you as program administrator. Conclusion: As Secretary- Treasurer of the Borough with the duties and responsibilities as outlined above, you are not to be considered a "public employee" or a "public official" as set forth in the Ethics Act. Therefore, there are no restrictions on your activity as a "public employee" or a "public official" as might otherwise be applicable to such individuals as set forth in the Ethics Act. However, should the Borough wish to engage in an open and public process as set forth in Section 3(c) of the Ethics Act in their selection of a program adminstrator, such action by the Borough would insure compliance with the spirit of the Ethics Act as discussed above. 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. Mr. John Andrew Simon August 14, 1984 Page 4 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 /na Sincerely, andra S. 'Tistianson General Cou sel