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HomeMy WebLinkAbout83-537 BrownMs. Linda L. Brown North & South Shenango Joint Municipal Authority RR #1, Box 12A Jamestown, PA 16134 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPIjONE: (717) 783 -1610 April 12, 1983 ADVICE OF COUNSEL fir 531 State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania RE: Joint Muniicipal Authority; Board Member; General Manager; Abstention Dear Ms. Brown: This responds to your letters of January 27 and February 5, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask what your duties, as an unpaid secretary of the Board of the North and South Shenango Joint Municipal Authority and as a compensated General Manager for the Authrority, are with regard to the Ethics Act. Facts: The North and South Shenango Joint Municipal Authority is governed by a six member Board. Three members are appointed by North Shenango Township and three by South Shenango Township. You, the Secretary of the Board, were appointed in May, 1981 and served without compensation until May 1, 1982. At that time the Board appointed you as General Manager and placed you on salary, while also retaining you as the uncompensated Secretary of the Board. As General Manager, you can recommend procurement and repair of items for the plant and system. As Secretary of the Board, you have one vote in six with regard to the payment of invoices. You have filed a Statement of Financial Interests with your local political subdivision, that is, the North and South Shenango Joint Municipal Authority, and are concerned about your duties under the State Ethics Act. Ms. Linda L. Brown April 12, 1983 Page 2 Discussion: As Secretary of the Board, you may or may not be requied to file a Financial Interest Statement with the State Ethics Commission. The decision in Snider v. Thornburgh, Pa. , 436 A.2d 593 (1981) has apparently altered the definition of public ficial" by removing the exclusion which thereto applied to appointed non - compensated officials. Although the Commission has not yet completed its review of the decision, it should be noted that the thrust of Commission policy in recent years has been toward a broad, but fair interpretation of the coverage of the Act, with a corresponding reduction of exemptions from the need to file Statements of Financial Interest. The Commission's decision in Bert, 80 -013, and Corapi, 81 -644, which found "coverage" under the Ethics Act as to redevelopment authorities, and the Commonwealth Court's decision in Forney v. State Ethic Commission, Pa. Cmwlth. , 425 A.2d 66 (1980), which did the same for municipal authorities, are examples of this trend. While these rulings did not answer the specific question of appointed, non- compensated board members filing, they do indicate the basic thrust that "coverage" is favored over exemption. At this point in time, however, as an uncompensated Board member you are under no obligation to file with the Ethics Commission until new regulations are promulgated or take effect. In that event you will be fully instructed as to your duties and responsibilities in sufficient time to comply with them. However, whether or not you are a public official as an uncompensated Board member, you, in your capacity as the compensated General Manager for the Authority, are a public employee within the definition of that term under the Ethics Act. See 65 P.S. 402. As a public employee, you are subject to the provisions of the Ethics Act. The Ethics Act requires you to avoid conflicts of interest or even the appearance of a conflict of interest with the public trust. See 65 P.S. 401 and 403. 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. In your situtation we cannot discern any per se conflict of interest, and you do not violate the Ethics Act by holding the positions of uncompensated secretary of the board and compensated general manager. Of course, should you as secretary of the board be required to vote on matters placed before the Board by you as general manager, you should abstain from such participation, discussion or votes while you continue to hold both positions. Ms. Linda L. Brown April 12, 1983 Page 3 In addition, we note that Sections 3(a) and (b) of the Ethics Act must be observed. These Sections provide that no public employee may use his public office to obtain financial gain other than compensation provided by law for himself or accept any thing of value, including the promise of future employment, based on the understanding that his official conduct would be influenced thereby. We present these cautions only as guides for future conduct so that you may be aware of these provisions of the Ethics Act. Conclusion: While you may o r may not be required to file a Financial Interest Statement with the State Ethics Commission as an uncompensated member of the Board of the North and South Shenango Joint Municipal Authority in your capacity as compensated general manager to the Authority, you are a public official and so must file a Statement of Financial Interests. As a Board member, you must abstain from participation in matters set before the Board by you in your capacity as general manager, and your future conduct must be guided by the cautions expressed in this Advice and contained in the Ethis Act. We note this request does not raise any questions as to the employment process by which you were selected as General Manager and this Advice, therefore, does not address the application of Section 3(c) of the Ethics Act to this case. 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. 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 cf service of this Advice pursuant to 51 Pa. Code 2.12. CW /rdp This letter is a public record and will be made available as such. Sincerely, LAS va4 / Sandra S. Christ) nson General Counsel/