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HomeMy WebLinkAbout83-522 WilsonWilliam D. Wilson, Esquire Wasson, Egan & Wilson P.O. Box 528 Franklin, PA 16323 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 16, 1983 ADVICE OF COUNSEL 83 —ff22 RE: Municipal Authority Member, Employment Contract, Abstention Dear Mr. Wilson: This responds to your letter of March 4, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether a member of a municipal authority may be employed as an employee of that authority. Facts: As Solicitor for the Municipal Authority (hereinafter, the Authority) of a Borough in Venango County you request advice on behalf of the Authority members. The Authority wishes to solicit applications and hire a part -time maintenance man. One of the Authority members may wish to be considered for this position. You note that the Athority members are appointed to their respective posts by Borough Council and are not paid, except for reimbursement for expenses, in their capacity as Authority members. Discussion: Non - compensated appointed officials such as Authority board members have been generally excluded from the definition of "public official" of the Ethics Act (65 P.S. 402) until the Supreme Court's ruling in Snider v. State Ethics Commission, Pa. , 436 A.2d 593 (1981) cast doubt upon that exclusion. While the Commission 1? not finally ruled upon the impact of this decision and has not held non - compensated members of authorities to be "public officials ", we will provide our response assuming that this response is requested merely for guidance and that the authority members are not clearly covered by the Ethics Act. Thus, the Authority need not mandatorily follow this Advice, but this Advice merely constitutes our non - binding decision and discussion in relation to the requirements of the Ethics Act. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania William D. Wilson, Esquire March 16, 1983 Page 2 The Ethics Act requires that any "public official" who contracts with the "governmental body" with which he is associated must do so only after an open and public process as required by Section 3(c) of the Ethics Act, 65 P.S. 403(c). Section 3(c) has been interpreted to mean that even in a contract of employment situation as outlined above, the governing body should insure that reasonable and prudent competitors or applicants for the position in question should be given notice and an opportunity to compete for or apply for the position in question. See Howard, 79 -004; Cantor, 82 -004; and Fields, 82 -006. Thus, if the Authority member -were to seek employment with the Authority there must be: 1. Prior public notice of the employment possibility and opening; 2. Sufficient time for a reasonable and prudent competitor - applicant to be able to prepare and present an application; 3. Public disclosure of all applications considered; and 4. Public disclosure of the employment contract awarded or offered and accepted. The Act also states that no public official may use his public office or any confidential information received through the holding of public office to obtain financial gain for himself other than the compensation provided by law. 65 P.S. 403(a). Also, the Act prohibits a public official from accepting anything of value, including the promise of future employment for himself based on the understanding that the official's conduct would be influenced thereby. See 65 P.S. 403(b). Thus, in order to avoid any appearance of any conflict of interest or impropriety as required by Section 1 of the Ethics Act and in conjunction with these two previous sections, the Authority member should abstain from voting on the Authority's decision relating to the selection of this maintenance employee. The reasons for this abstention should be placed on the public record and the Authority member should not participate in any manner in discussions or decisions to reject or accept any applicants for this position. Conclusion: Even if the Authority member is covered by the Ethics Act, if his conduct is governed by the above considerations, an Authority member may be hired as a maintenance employee for the Authority. - William D. Wilson, Esquire March 16, 1983 Page 3 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. SSC /rdp Sandra S. Ch istianson General Counsel