HomeMy WebLinkAbout83-620 DanyiMr. Frank J. Danyi, Jr.
Maloney & Danyi
East Broad & Elm Streets
P.O. Box 1248
Bethlehem, PA 18018
Dear Mr. Danyi:
Matin Address.
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
November 30, 1983
ADVICE OF COUNSEL
83 -620
RE: Township Commissioner, Employment as Township Manager, Abstention
This responds to your letter of October 27, 1983, in which you, as
Solicitor for the Bethlehem Township Board of Commissioners, requested advice
from the State Ethics Commission.
Facts: Bethlehem Township in Northampton County has an ordinance which
provides for a Township manager. The Board of Commissioners of Bethlehem
Township would like to fill the vacant position of Township manager and
intends to advertise and accept applications for the position.
Mr. Albert R. Timko is running unopposed for re- election to a four year
term that will run through January, 1988. He is currently serving as an
elected Commissioner whose term expires on the first Monday of January, 1984.
Mr. Timko, whose position with Bethlehem Steel was abolished in October, 1983,
wishes to apply for the position as Bethlehem Township manager. Mr. Timko
will apply for the position while serving as an elected Township Commissioner,
but he will resign his position as Commissioner, either current or future, in
the event that he is selected as Township manager. You indicate that Mr.
Timko understands the restrictions placed upon him by the Ethics Act, and that
he will not participate in any of the discussions or votes of the Township
Commissioners concerning the position of Township manager.
In light of the fact that Mr. Timko is currently a Township Commissioner,
you are concerned with whether or not he may apply for and then possibly
accept the position of Township manager, and you have, therefore, requested
advice from the State Ethics Commission.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Frank J. Danyi, Jr.
November 30, 1983
Page 2
Discussion: Initially, the Ethics Commission notes that elected members of
the Bethlehem Township Board of Commissioners are "public officials" within
the definition of that term under the Ethics Act. See 65 P.S. 402. As such,
they are subject tc the provisions of the Ethics Act and must conform their
conduct to the requirements of the Act. See 65 P.S. `;U1 et seq.
The Ethics Act requires Township 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 Commisson indicated
that serving or holding two positions would constitute a conflict of interest
only where the individual in such service would be repesenting the interests
of two or more persons whose interests are adverse to each other. Although
you have indicated that Mr. Timko would resign his position as Township
Commissioner in tie event that he was selected as Township manager, the Ethics
Commission does not believe that the interests of Bethlehem Township and its
Township manager can be construed as being adverse. Therefore, a member of
the Board of Commissioners such as Mr. Timko who might also be selected to
serve as the Township manager would encounter no inherent conflict of interest
under the Ethics Act. Thus, there would be no necessity for Mr. Timko to
resign his position as Commissioner even if he were selected as Township
manager. Of course, there would be no restriction against his resignation or
conflict in the event he should chose to resign and was selected as 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 with which he is associated unless the contract, valued at
$500 or more is awarded through an open and public process. As a public
official, Mr. Timko must comply with the requirements of Section 3(c) of the
Ethics Act if ho seeks to contract (as manager) with the Township.
In its opinion in Howard, 79 -044 and Fields, 82 -006, the Commission
stated that an open and pJb c process is met by applying the following
criteria:
1. prior public notice of the employment possibiljty 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. See also Cantor, 82 -004.
Mr. Frank J. Danyi, Jr.
November 30, 1983
Page 3
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 or hold the
position as business manager. As you have indicated, the Township Board of
Commissioners intends to advertise for applications to fill the vacancy in the
position of manager and this meets the requirements of Section 3(c) of the
Act.
Finally, Section 3(a) of the Ethics Act, 65 P.S. 403(a), prohibits any
public employee or official from using his public office or employment or
confidential information received through holding 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 interests in
preventing both conflicts and the appearance of a conflict of interests, any
Board member who has applied for the position as manager would be precluded
from participating in any manner in the selection process of the Township for
that position. Mr. Timko, as you note, may neither vote for or against
himself or any other candidate for the position, nor may he participate in any
of the Township's discussions on the matter. The reasons for his abstention
should also be placed on the public record.
Although, as you have indicated, Mr. Timko intends to resign his position
as Township Commissioner if he is appointed as manager, there is no need to
resign as a member of the Board if he is appointed to act as manager and if he
can effectively abstain from participation as a Board member in matters placed
before the Board by him as manager. With regard to resignation prior to, at
the time of, or subsequent to his,application, Section 3(c) of the Ethics Act
mandates no such action where no conflict or appearance of a conflict of
interest is inherent in the holding of two positions. Again, as indicated
above, nothing would prevent or require Mr. Timko from resigning his position
on the Township Board of Commissioners should he desire to di so.
Conclusion: A member of the Bethlehem Township Board of # Commissioners may
serve simultaneously as the Township manager so long as he can effectively
abstain from participation in matters set before the Board by him as Township
manager.
Mr. Timko, may apply for the position as manager and need not resign from
the Board prior to, at the time, or subsequent to such application so long as
there is compliance with the provisions of the Ethics Act and, in particular,
with the open and public process requirements of Section 3(c) of the Ethics
Act. A member of the Board of Commissioners who does apply for the manager
position must abstain from all participation in the Township's selection
process as discussed above.
Mr. Frank J. Danyi,
November 30, 1983
Page 4
CW /rdp
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.
Sincerely,
afidra S. C'hr /sti ansorr
General Coun4el