HomeMy WebLinkAbout17-546 OrdichSTATE ETHICS COMMISSION
339 FINANCE BUILDING
P0, BOX 11473
HARRISBURG, PA 17108-1470
(717) 783 -1610
1 -803- 932 -0936
ADVICE OF COUNSEL
August 1, 2017
To the Requester:
Melinda Ordich
17 -546
Dear Ms, Ordich:
This responds to your letter dated May 30, 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P`577S. '1101 et seq., would impose prohibitions or restrictions upon an individual
employe as an office clerk for a borough, who also serves as the tax collector for the
borough, with regard to simultaneously serving as a member of council for the borough.
Facts: You request an advisory from the Commission based upon submitted facts
f T ay be fairly summarized as follows.
You are employed as an office clerk for Shippingport Borough ( "Borough "). You
also serve as the Borough Tax Collector. You state that the Borough has a population of
approximately 240 to 250. You would like to be appointed to fill a vacancy on Borough
Council.
Given that you already serve as an office clerk and Tax Collector for the Borough,
you ask whether you may simultaneously serve as a Member of Borough Council.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Tct, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requester to truthfully disclose all of the material facts
relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense
to the extent the requester has truthffully disclosed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics
Act, an opinion/advice may be given only as to prospective (future) conduct. If the activity
in question has already occurred, the Commission may not issue an opinion/advice but any
person may then submit a signed and sworn complaint, which will be investigated by the
Commission if there are allegations of Ethics Act violations by a person who is subject to
the Ethics Act. To the extent you have inquired as to conduct that has already occurred,
such past conduct may not be addressed in the context of an advisory opinion. However,
FAX: (717) 787 -3836 a Web Site: www.ethics.state.pa.us 0 e -mail: ethics2state.a.us
Ordich, 17 -546
August 1, 2017
Page 2
to the extent you have inquired as to future conduct, your inquiry may, and shall, be
addressed.
As the Borough Tax Collector, you are a public official subject to the provisions of
the Ethics Act. If you would be appointed as a Member of Borough Council, you would in
that capacity also be a public official subject to the provisions of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
0) Voting conflict.—Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or by
any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his interest
as a public record in a written memorandum filed with the
person responsible for recording the minutes of the meeting at
which the vote is taken, provided that whenever a governing
body would be unable to take any action on a matter before it
because the number of members of the body required to
abstain from voting under the provisions of this section makes
the majority or other legally required vote of approval
unattainable, then such members shall be permitted to vote if
disclosures are made as otherwise provided herein. In the
case of a three- member governing body of a political
subdivision, where one member has abstained from voting as
a result of a conflict of interest and the remaining two members
of the governing body have cast opposing votes, the member
who has abstained shall be permitted to vote to break the tie
vote if disclosure is made as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), 0).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. 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. The term 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
Ordich, 17 -546
August 1, 2017
Page 3
of 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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited
from using the authority of public office /employment or confidential information received by
holding such a public position for the private ecuniary benefit of the public officiallpublic
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated. The use of authority of office is not limited
merely to voting, but extends to any use of authority of office including, but not limited to,
discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809.
In each instance of a conflict of interest, a public official/public employee would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally,
the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied
in the event of a voting conflict.
In applying the above provisions of the Ethics Act to the question presented, it is
initially noted that the General Assembly has the constitutional power to declare by law
which offices are incompatible. Pa. Const. Art. 6, § 2.
It is further noted that the Borough Code provides, in pertinent part, as follows:
§ 1104. Appointments and incompatible offices.
(a) General rule. --
Unless there is incompatibility in fact, an elective or
appointive officer of the borough shall be eligible to serve on
any board, commission, bureau or other agency created by or
for the borough or any borough office created or authorized by
statute and may accept appointments under the statute.
(b) Prohibition.
(1) Except as set forth in paragraph (2), no
elected borough official of a borough with a
population of 3,000 or more may serve as an
employee of that borough.
(2 ) Paragraph (1) shall not apply to a borough
o icial serving as an employee of that borough
prior to the certification of the 2010 official
census or a subsequent latest official census
which indicates an increase in the population of
that borough to 3,000 or more.
(c) Multiple offices. --
Ordich, 17 -546
August 1,2017
Page 4
If there is no incompatibility in fact and subject to
subsection (a) as to compensation, appointees of council may
hold two or more appointive borough offices, but no mayor or
member of council may serve as borough manager, secretary
or treasurer.
(h) Construction. --
Nothing contained in this section shall be construed to
affect the eligibility of a borough official to hold any other public
office or receive compensation.
8 Pa. C.S. § 1104.
Based upon the submitted fact that the population of the Borough is approximately
240 to 250, you are advised that there does not appear to be any statutorily- declared
incompatibility that would preclude you from simultaneously serving as a Member of
Borough Council where you are already serving as an office clerk for the Borough and the
Borough Tax Collector.
Turning to the question of conflict of interest, where simultaneous service would
place the public official/public employee in a continual state of conflict, such as where in
one position he would be accounting to himself in another position on a continual basis,
there would bean inherent conflict. See, McCain, Opinion 02 -009). Where an inherent
conflict would exist, it would appear to be impossible, as a practical matter, for the public
official/public employee to function in the conflicting positions without running afoul of
Section 1103(a) of the Ethics Act.
Absent a statutorily- declared incompatibility or an inherent conflict under Section
1103(x), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position. However, in each instance of a conflict of interest, the individual
would be required to abstain from participation, which would include voting unless one of
the statutory exceptions of Section 1103 ') of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to
be satisfied in the event of a voting conflict.
In this case, based upon the facts that have been submitted, there does not appear
to be an inherent conflict that would preclude you from simultaneously serving as a
Member of Borough Council where you are already serving as an office clerk for the
Borough and the Borough Tax Collector. Consequently, such simultaneous service would
be permitted within the parameters of Sections 1103(a) and 11030) of the Ethics Act.
You are advised that you generally would have a conflict of interest in matters
before Borough Council that would financially impact: (1) your employment as an office
clerk for the Borough; or (2) the office of Borough Tax Collector, including but not limited to
the fixing of compensation for you as the Borough Tax Collector and any review /oversight
as to taxes collected by you as the Borough Tax Collector. In each instance of a conflict of
interest, you would be required to abstain from participation, which would include voting
unless one of the statutory exceptions of Section 11030) of the Ethics Act would be
applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act
would have to be satisfied in the event of a voting conflict.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: Based upon the submitted facts that: (1) you are employed as an
office clerk for Shippingport Borough ( "Borough "); (2) you also serve as the Borough Tax
Ordich, 17 -546
August
Page 5
Collector; (3) the Borough has a population of approximately 240 to 250; and (4) you would
like to be appointed to fill a vacancy on Borough Council, you are advised as follows.
As the Borough Tax Collector, you are a public official subject to the provisions of
the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et se q. If you
would be appointed as a Member of Borough Council, you would in that ca acfty also be a
public official subject to the provisions of the Ethics Act. Subject to the restrictions,
conditions and qualifications set forth above, you may, consistent with Section 1103(a) of
the Ethics Act, simultaneously serve as a Member of Borough Council where you are
already serving as an office clerk for the Borough and the Borough Tax Collector. You
generally would have a conflict of interest in matters before Borough Council that would
financially impact: (1) your employment as an office clerk for the Borough; or (2) the office
of Borough Tax Collector, including but not limited to the fixing of compensation for you as
the Borough Tax Collector and any review /oversight as to taxes collected by you as the
Borough Tax Collector. In each instance of a conflict of interest, you would be required to
abstain from participation, which would include voting unless one of the statutory
exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the
disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in
the event of a voting conflict. Lastly, the propriety of the proposed course of conduct has
only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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, provided the requester 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 orif you have any reason to
challenge same, you may appeal the Advice to the full Commission. A
personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or by
FAX transmission (717787- 0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
incer Iy,
'U 1.
obin M. Hittie
Chief Counsel