HomeMy WebLinkAbout86-503 ColeThomas P. Cole, II, Esquire
North Huntingdon Township
Town House
11279 Center Highway
North Huntingdon, PA 15642
near Mr. Cole:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
January 16, 1986
ADVICE OF COUNSEL
86 - 503
Re: Simultaneous Service, First Class Township Commissioner, Member,
Municipal Authority
This responds to your letter of December 4, 1985, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether a commissioner in a township of the first class may
simultaneously serve as a member of a township municipal authority and receive
compensation therefor.
Facts: You are Solicitor for North Huntingdon'Township, Westmoreland County,
Pennsylvania. In this capacity, you have requested the advice of the State
Ethics Commission regarding the ahove issue. You indicate that Township
Commissioner Phil Ahhott currently serves as an elected commissioner for the
township. Commissioner Ahhott has two years left to serve before ending his
four year elected term. The township hoard of commissioners desire to appoint
Commissioner Ahhott to the North Huntingdon Township Municipal Authority. You
indicate that Commissioner Ahhott currently receives a salary as a memher of
the township hoard of commissioners and also receives compensation, in the
amount of i; 3,6Of.f1O per year from the Authority. You have questioned whether
there are any prohibitions within the purview of the Ethics Act regarding this
proposed activity.
Discussion: As a commissioner in a township of the first class, this .
individual would he a public official within the purview of the State Ethics
Act. 65 P.S. 6402. As such, his conduct must conform to the requirements of
the State Ethics Act. See Dodds, 84 -011.
Thomas P. Cole, II, Esquire
January 16, 1986
Page 2
Initially, we note that neither the First Class Township Code, 53 P.S.
555101 et. seq., nor the Pennsylvania Municipal Authorities Act, 53 P.S. 5301
et. seq., place any prohibition upon the simultaneous service by a township
commissioner as a member of a municipal authortity. While several court cases
have indicated that such service for members of a borough council, and third
class city council members would be prohibited, see Department of State v.
Mount Joy Borough, 66 D & C 251, (1948); McCreary v. Major, 343 Pa. 355, 2.2
A.2d 686, (1941). Other authority has indicated that a township commissioner
could not he prohibited from serving in a similar capacity. See Crescent
Township v. Runyon, 11 D & C 3d 705, (1977) Affirmed pur curiam, 428 Pa. 170,
A.2d , 1978. The Court, in Crescent, specifically held that while
such positions should not generally be held by the same individual, a court
does not have the power to declare the two offices incompatible and such must
be done by the General Assembly. As a result, the State Ethics Commission has
not heretofore ruled that simultaneous service by a first class township
commissioner as a member of the township's municipal authority would violate
the provisions of the State Ethics Act.
The Ethics Act does provide, however, as follows:
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).
Within the above provision of law, public officials, including a township
commissioner, may not use their public position in order to obtain any
financial gain for themselves or a member of their immediate family other than
the compensation provided by law. In light of this particular provision of
law, this Commission has previously ruled that a public official may not
participate or vote in his own governmental body's decision to appoint him to
a compensated position. See King, 85 -025. The Commission determined that
under such situations, a public official would be placing himself in a
position to receive compensation even though that person does not actually set
the amount of such compensation. This type of activity, the Commission
determined, while it may be considered an indirect benefit, is none the less
not so remote as to completely alleviate concerns that gave rise to the
promulgation of the Ethics Act. It is clear, that a public official may not
participate in any matter where he has a direct, personnel, and pecuniary
interest. See Reckner' v. Germantownship School District, 341 Pa. 369,
A.2d (1941 ; Commonwea t v. Rouden.us , Pa. 99 A. 555, (1T1
MeixeTEv. Hillardtown Borough, 370 Pa. 420, 88 A.2d 594, (1952). Thus, the
Thomas P. Cole, II, Esquire
January 16, 1486
Page 3
township commissioner herein question should not to any extent participate in
the township's decision to appoint him to a position on the municipal
authority. Additionally, this commissioner should make known puhlicly his
abstention and the reasons therefor, and should also have such abstention and
reasons publicly recorded in the appropriate township minutes.
In addition to the foregoing, the Ethics Commission may also 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 5401 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 has, thus, previously determined that a conflict of
'interest would arise in situations where the public official serves interest
that are adverse. See Alfano, 80 -007; Allen, 79 -02.4 and nomalakes, 85 -010.
It is clear, that municipal authorities are not creatures, agents or
representatives of the municipalities which organize them hut are rather
independent agencies of the Commonwealth and part of its sovereignty.
Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 345, 2.81 A.2d
882, (1971). It is clear, therefore, that there may be occasions where the
interest of the independent municipal authority are adverse to the interest to
the muncipality that creates that authority. The converse of this may also be
true. For example, as a member of the township commission this individual may
be called upon to decide whether the township should investigate the financial
affairs of the municipal authority. You may also be called upon to appoint
other members of the township municipal authority. The township may decide to
initiate some type of litigation against the authority or the authority may
attempt to litigate a matter against the township. Because of these varying
possibilities, there is no doubt that his position as councilman would clearly
be in conflict with his position as a member of a m unicipal authority. As
such, this township commissioner should not participate as a member of the
township commission in any matter that directly relates to the activities of
the municipal authority. It is further suggested that if the municipal
authority must take any action relating to or in conflict with his township
position, he must similarily abstain from participating as a member of the
municipal authority in that decision. This is required in order that he may
avoid any potential conflict of interest. See Marsilio, R6 -500. In the
event, that any specific questions develop and further advice is necessary,
this commissioner may request further advice from the State Ethics
Commission.
Conclusion: While the State Ethics Act presents no per se prohibition upon
the simultaneous service by a township commissioner as a member of a township
municipal authority, as a public official this individual's activity must
conform to the requirements of the State Ethics Act and the prior opinions of
the State Ethics Commission. As such, this individual is to he guided, if he
accepts the position as a member of the municipal authority, by the advice
outlined above.
Thomas P. Cole, II, Esquire
January 15, 19P6
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.
This letter is a public record and will he 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 he scheduled and a formal
Opinion from the Commission will he 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.
Sinc
John J ;ontino
Gen : al Counsel