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HomeMy WebLinkAbout83-625 CerasoJoseph W. Ceraso, Esquire 618 Wallace Street P.O. Box 66, Park Station Vandergrift, PA 15690 -0866 Dear Mr. Ceraso: Mailing Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 12, 1983 ADVICE OF COUNSEL 83 -625 RE: Kiski Vally Water Pollution Control Authority, Borough Office This responds to your letter of November 21, 1983, in which you, as Solicitor for an Authority, requested advice from the State Ethics Commission. Issue: You ask whether there is a conflict of interest when a board member of a municipal authority serves as a borough official under certain circumstances. Facts: As Solicitor for the Kiski Valley Water Pollution Control Authority, hereinafter the Authority. You state that the Authority was created pursuant to the Municipality Authorities Act of May 18, 1945, for the purpose of operating a sewer system and a sewage treatment plant. The Authority was created by 13 municipalities each of which appoints one member to the governing board of the authority for a five year term. At the recent municipal election one of the members who is currently serving as a member of the Board of the Authority was elected as a member of the Council in a Borough which is one of the 13 municipalities served by the Authority. This member of the Authority Board has a term which expires on the first Monday of January, 1987. As a member of Borough Council, he has been elected to a term of office of four years beginning on the first Monday of January, 1984. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Joseph W. Ceraso, Esquire December 12, 1983 Page 2 Discussion: As a member of Borough Council the individual about whose conduct you inquire, as Solicitor, will be considered a "public official" es that term is defined in the State Ethics Act. As a member of the Authority, there is some question as to whether this individual is also a "public official" as that term is defined in the Ethics Act., This question arises due to the fact that you have provided no information upon which to determine whether the individual in question, when serving as a member of the Authority's Board, is compensated or not compensated, except for reimbursement fcv actual expenses. If the individual is not compensated for his service as e member of the Board of the Authority, he may or may not, in that capacity, be considered a "public official" depending on the final interpretation and application of the ruling in Snider v. Thornburgh, 436 A.2d 593, 469 Pa. 159 (1981). Even given this decision as set forth above, the State Ethics Commission has not finally determined whether uncompensated me,nbers of an authority should be considered within the definition of 'public official" as that term has been defined in the Act and interpreted by the courts. Notwithstanding this ambiguity, however, and even assuming that this individual might be a "public official" in both his capacities as a member of Borough Council and a member of the Board of the Authority, there is nothing in the Ethics Act which would indicate that it would be inherently inconsistent or incompatible for this individual to serve in both capacities simultaneously. Essentially, the Ethics Act requires that a "public official" must conduct himself in a manner which gives rise to neither a conflict of interest nor the appearance of a conflict of interest with the public trust. The Commission has indicated that a conflict would arise when an individual is serving entities which have interests which aee adverse to one another, See Alfano, 80 -007. In the situation which you present the interests of the Borough and the Authority are not adverse to each other. Accordingly, there is no requirement under the Ethics Act that ,his individual must resign from, or refuse, one of the two post in order to comply with the provisions of the Ethics Act. However, if such an individual continues to serve in both posts, there may be restrictions placed upon his conduct vis -a -vis his ability as a member of Borough Council to take or recommend actions or to participate in decisions of the Borough relative to the Authority. Specifically, this individual should, as a member of Borough Council, abstain from participating in discussions and decisions of the Borough relative to such matters of interest to the Authority as may be presented to the Borough, including, but not limited to, the appointment or re- appointment of the Borough's representative on the Board of.the Authority. These problems or decisions which may require abstention, however, can be dealt with on a case -by -case basis and do not require that the individual in question resign from his position as either member of Borough Council or the Board of the Authority. Joseph W. Ceraso, Esquire December 12, 1983 Page 3 Conclusion: There is no inherent imcompatibility, under the provisions of the State Ethics Act, if the member of Borough Council as outlined above were to continue to serve as a member of the Board of the Authority. Such an individual, however, as a member of Borough Council, may be required to abstain from participating in discussions and decisions of the Borough Council relative to matters of interest of the Authority which may be presented to the Borough for discussion or decision. These circumstances can be handled on a case -by -case basis as they may arise in the future. If the individual in question is required to abstain as outlined above, the reasons for this abstention should be placed on the public record. 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, Sandra S. hristianson General Counsel SSC /rdp -