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HomeMy WebLinkAbout83-536 OConnellMr. John M. O'Connell O'Connell & Silvis 131 West Pittsburgh Street Greensburg, PA 15601 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 April 11, 1983 ADVICE OF COUNSEL RE: Sewage Authority Member as Authority Business Manager Dear Mr. O'Connell: g3 Co This responds to your letter of January 28, 1983, in which you as the Solicitor for the Greater Greensburg Sewage Authority requested advice from the State Ethics Commission. Issue: You ask whether a member of the Authority Board may hold the position as Authority Business Manager, and whether Board members who have applied for the position as Business Manager may participate in the selection process. Facts: You are the Solicitor for the Greater Greensburg Sewage Authority. You state that the Authority Business Manager recently passed away, and that the Authority has advertised for applications to fill the vacancy of Manager of the Authority. You indicate that one or more of the Authority Board members may be interested in applying for the job as Business Manager, which is a compensated, full -time position. Authority Board members are not full -time employees, but they receive monthly compensation for acting as Board members. You state that the Authority is concerned with whether a member of the Authority Board may simultaneously serve as the Authority Business Manager, and whether Board members who have applied for the position of Business Manager may participate to any extent in the selection process. Discussion: Initially, the Ethics Commission notes that the compensated members of the Board of the Greater Greensburg Sewage Authority are "public officials" within the definition of that term under the Ethics Act. See 65 P.S. 402 and Forney v. State Ethics Commission, Pa. Cmwlth. , 425 A.2d 66 (1981). As such, they are subject to the provisions of the Ethics Act and must conform their conduct to its requirements, 65 P.S. 401 et seq. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. John M. O'Connell April 11, 1983, Page 2 The Ethics Act requires the Board members to avoid conflicts of interest or even the appearance of a conflict of interest. See 65 P.S. 401 and 403. However, in its opinion in Alfano, 80 -007, the Commission indicated that serving or holding two positions would constitute a conflict of interest only where the individual in such service would represent the interests of two or more persons whose interests are adverse to one another. Certainly the interests of the Greater Greensburg Sewage Authority and its Business Manager can hardly be construed as having adverse interests since they are essentially the same entity. Therefore, a Board member who might also serves as the Authority Business Manager would encounter no inherent conflict of interest. Of course, any Board member who also served as Business Manager would have to abstain from all participation in discussion or votes on any matter placed before the Board by him as Business Manager, but as long as abstention is complete, there is not even the appearance of a conflict of interest. You have inquired whether Board members must resign from the Board prior to, at, or subsequent to the time they submit their applications for Business Manager or are indeed appointed to that position. As indicated above, there is no need to resign as a member of the Board if the member appointed to act as Business Manager can effectively abstain from participation as a Board member in matters placed before the Board by him as Business Manager. With regard to resignation prior to or at the time of application, Section 3(c) of the Ethics Act mandates no such action. As you have indicated, the Authority has advertised for applications to fill the vacancy of Business Manager. Section 3(c), 65 P.S. 403(c), provides that no public official, member of his immediate family or any business in which the person has an interest greater than 5% of the equity at fair market value may contract with a governmental body unless the contract, valued at $500 or more, is awarded through an open and public process. In its opinion in Howard, 79 -044, the Commission stated that an open and public process meets the following criteria: (1) prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. If these open and public process requirements are complied with, there is no need for a Board member to resign in order to be considered for the position as Business Manager so long as he further conforms his conduct to the requirements of the Ethics Act, especially Section 3(a) and (b). Mr. John M. O'Connell April 11, 1983, Page 3 Section 3(a), 65 P.S. 403(a), prohibits any public employee or official from using his public office or employment or confidential information received through public employment /office to receive financial gain for himself, his family, or a business with which he is associated. In addition, Section 3(b), 65 P.S. 403(b), precludes a person from offering a public official or employee any thing of value, including a promise of future employment, based on the understanding that his official action would be influenced thereby. In light of these provisions, as well as the overriding interest in preventing both conflicts and the appearance of conflicts of interest, any Board member who has applied for the position as Business Manager would be precluded from participation in any manner in the selection process for that position. He may neither vote for or against himself or any other candidate for the position, nor may he participate in any discussions on the matter. Conclusion: A Member of the Authority Board may serve simultaneously as the Authority Business Manager so long as he can effectively abstain from participation in matters set before the Board by him as Authority Business Manager. Members of the Board who apply for the position as Business Manager need not resign from the Board prior to or at the time of their application so long as they comply with the provisions of the Ethics Act and the open and public process requirements of Section 3(c) of the Ethics Act are met. Members of the Board who do apply for the Business Manager position must abstain from all participation in the selection process as discussed above. 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. CW /rdp Sincerely, a tibal J Y 7 dra S. Christianson General Counsel