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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