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HomeMy WebLinkAbout86-500 MarsilioThomas M. Marsilio, Esquire Northeastern Building Hazleton, PA 182.01 Dear Mr. Marsilio: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 January 7, 1986 ADVICE OF COUNSEL 86 -500 Re: Conflict of Interest, Borough Councilman Employee, Municipal Authority This responds to your letter of December 9, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions upon a horough councilmemher's participation in matters relating to a municipal authority by which he is employed. Facts: You serve as solicitor for West Hazleton Borough, Luzerne County, Pennsylvania. You have requested the advice of the State Ethics Commission on behalf of a memher of the borough council who is also an employee of the Greater Hazleton Joint Sewer Authority. The borough is a member of that municipal authority. You have specifically requested the advice of the Commission in regard to the following questions: May a borough councilman vote on the appointment of the borough's representative to the governing hoard of the municipal authority. May a borough councilman vote to appoint his mother as the borough's representative to the governing board of the authority. May a borough councilman vote on other matters or resolutions which relate to transactions between the horough and the authority. Discussion: A borough councilmemher is a public official within the definition of that term as set forth in the State Ethics Act. 65 P.S. 6402. As such, this individual must conform to the requirements of the Act. Damian, 79 -057; Davis, 84 -012. Generally, the State Ethics Act was promulgated in order to insure the puhlic that the financial interests and activities of their puhlic officials neither conflict nor appear to conflict with the public trust. 65 P.S. 6401. Thomas M. Marsilio, Esquire January 7, 1986 Page 2 In light of this provision, 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 1;y law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, a public official may not use his public position or any confidential information obtained in that public position in order to secure a financial gain for himself or any member of his immediate family. A member of one's immediate family is further defined in the State Ethics Act as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. In the instant situation, the borough councilperson would not appear to be ohtaining any financial gain for himself or a member of his immediate family as that term is specifically defined in the State Ethics Act if he were to participate in the appointment of the borough council's representative to the municipal authority. As a result, it would appear to be no prohibition imposed upon the borough councilman pursuant to this provision of law. The Ethics Act, however, further provides that the Commission may address other areas of possible conflict. 65 P.S. .5403(d). The type of activities that are subject to review by the Commission within this provision of law are determined through a review of the purpose and scope of the Act as set forth in r$401 of the Act. That Section provides that the conduct and activities of public officials shall neither conflict nor appear to conflict with the public trust. The Commission may, therefore, review broader areas of potential conflicts of interests within §403(4) of the Act than as set forth in other Sections of the State Ethics Act. See Pennsylvania State Association of Township Supervisors v. Thornburgh, 496 Pa. 324, 437 A.2d 1, 1981. The Commission has previously determined that a conflict of interest will arise in situations where the public official serves interests that are adverse. See Alfano, 80 -007; Allen, 79 -024; f)omal akes, 85 -010. It is clear, that municipal authorities are not creatures or agents or representatives of the municipalities which organize them, but are rather independent agencies of the Commonwealth and part of its sovereignty. Commonwealth v. Erie Metropolitan Transit Authors, 444 Pa. 345, 281 A.2d 882, (1971). It is clear, therefore, that there may be occasions where the interests of the independent municipal authority are adverse to the interest Thomas M. Marsilio, Esquire January 7, 1986 Page 3 of the municipalilty that creates the authority. In the instant situation, the member of borough council is an employee of the municipal authority and has a direct personal financial interest in his continued employment with that authority. If this councilman were to participate in the appointment of the borough's representative to that authority, there's no doubt that his interests could be perceived to he in conflict as he would be participating in voting for a person who would have authority over him in his private position. Thus, the actions of the borough councilman, as a member of the borough council, could he perceived to be occasioned by virtue of the fact that he has a financial interest in continuing his employment with the municipal authority. While this interest may not appear to be direct at first glance, there is no doubt that such interest does exist. As such, and within the above provisions of the Ethics Act, this borough councilmember must abstain from participation in the appointment of the borough's representative to the municipal authority. While the above analysis substantially answers the second question that you have posed, it is noted that the fact that the borough councilperson's mother is one of the individual's being considered for that appointment, hightens the potential conflict of interest in this situation. This is so, in that it can be perceived that not only is the councilman appointing someone who will have direct oversight of his private position with the authority, it could be perceived that he is appointing someone who would be totally loyal to his position. As noted previously, while the State Ethics Act, b3(a), specifically defines member of immediate family as the official spouse or minor dependent child, the general authority of the Commission to address areas of conflict is not limited by such technical definitions. As a result, the Commission has previously held that when addressing general questions of conflicts of interests under other sections of the law, such as b403(d), the technical definitions provided for in Section 3(a) are not applicable. See Leete, 82 -005; O'Reilly, 83 -012. As a result, this official specifically could not participate n the consideration of his mother for the position of borough counci 1person. With relation to your final question, from the above analysis, the borough councilperson may not vote or participate on any motions or resolutions which directly relate to transactions between the borough and the authority. You have noted in your request letter an example as to the type of activity in which the borough councilman may be called upon to participate. Specifically, you note that he may be called upon to vote on motions to investigate the finances of the authority or to sue the authority. There is no doubt that his position as a councilman would clearly be in conflict with his position as an employee of the municipal authority if he were to participate in such matters. As an employee of the authority, he clearly has a duty to that independent agency to act on behalf of that agency and that agency's governing body. As a member of the borough council , however, he has a continuing duty to the public which he serves as a councilmember to insure that the activities of the authority work with the requirements of law. Thus, there is no doubt that he would be acting in conflicting positions if he were, Thomas M. Marsilio, Esquire January 7, 1986 Page 4 as a borough councilman, to vote upon matters regarding the authority. Thus, this councilmember may not participate in any matter that directly relates to the activities of the municipal authority. Additionally, it . is further advised that this person, within the provisions of Section 3(a) of the Act, cited above, may not use any confidential information he obtained as a borough councilman in his position as an employee of the municipal authority. See Ceraso, 83 -625. Finally, while we do not specifically address the issue in this advice, we note that the Commission has recently issued an advice advising that a borough councilperson who is also the president or chairman of a hoard created by the borough, such as a council on government, may not receive compensation for duties performed as an employee, i.e. executive di rector, of that council. The Commission specifically address this question under , 5403(a) of the Ethics Act in light of the provisions of the Borough Code, 53 P.S. 546104, which provide that no borough councilman shall receive compensation for the acceptance of an appointment under any hoard, commission, bureau or other agency created by or for the borough. See Stone, 85 -597. Conclusion: A borough councilperson who is an employee of a municipal authority that was, in part, created by and for the borough, may not participate in the appointment of that borough's representative to the municipal authority, or in any other matter or transaction specifically relating to the borough's dealings with that authority. 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 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. JJC /sfb Si n tiro Gener. Counsel