HomeMy WebLinkAbout86-532 KuryFranklin L. Kury, Esquire
300 N. Second Street
Harrisburg, PA 17101 -1303
Re: Simultaneous Service: Member of a Municipal Authority, Employee of
Authority
Dear Mr. Kury:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
April 3, 1986
86 - 532
This responds to your letter of March 6, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether a member of a municipal authority may be employed by that
authority.
Facts: As Solicitor to a municipal authority, you have requested the advice
of the State Ethics Commission in relation to the above issue. Generally, you
have advised that the authority was created pursuant to the Municipal
Authorities Act, 53 P.S. §301 et. seq. Members serving on this authority
receive compensation for holding office. You indicate that one of the
authority board members is being considered for a position of employment with
the authority. You have advised that such employment is expressly permitted
by the Municipal Authorities Act and, have now requested the opinion of the
State Ethics Commission as to whether any prohibitions on such employment
would be placed upon this individual by virtue of the State Ethics Act.
Discussion: Generally, memhers serving on the governing board of a municipal
authority, that is formed under the Pennsylvania Municipal Authoritiies Act,
53 P.S. §301 et. seq., are public officials within the purview of the State
Ethics Act. See; Forney v. State Ethics Commission, 56 Pa. Comm. 539, 425
A.2d 66, (1981). The status of such individuals, as public officials, is no
longer affected by whether they receive compensation or not, and
non - compensated memhers serving on such authorities are also puhlic officials
within the purview of the State Ethics Act. See Dice, 85 -021; Snider v.
Thornburgh, 469 Pa. 159, 436 A.2d 593, (1981). As public officials, these
individuals must conform their activities to the requirements of the State
Ethics Act.
Franklin L. Kury, Esquire
April 3, 1986
Page 2
Generally, the State Ethics Act provides as follows:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Withip the above provision of law, no public official may use their public
position in order to obtain any financial gain for themselves, other than the
compensation provided for by law. Such public officials may not use
confidential information obtained in their public position for similar
purposes. The Ethics Act, however, has no per se or absolute restrictions or
prohibitions that would prevent a public official or employee from serving in
another position of public service simultaneously. Generally, this Commission
must review whether such simultaneous service constitutes a conflict of
interests or otherwi se results i n the offici al obtaining a financial gai n,
through the use of his public office, in violation of Section 3(a). Prior
opinions and advices of this Commission have set forth the general principle
that individuals who serve as members of municipal authorities, while not
absolutely precluded from serving in a position of employment with said
authority are, nevertheless, required to abstain from all participation in
their appointment to such position and the establishment of the compensation
to be fixed for such service. See Molnar, 83 -529; O'Connell, 83 -536.
In addition to abstaining from their appointment and compensation
activities, it is advised that the appointment of such member, as an authority
employee, be conducted through an open and public process. This would be
specifically so in light of Section 403(c) of the State Ethics Act which
provides as follows:
Section 3. Restricted activities.
(c) No public official or public employee or a member of
his immediate family or any business in which the person
or a member of the person's immediate family is a
director, officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the business shall
enter into any contract valued at $500 or more with a
governmental body unless the contract has been awarded
through an open and public process, including prior public
notice and subsequent public disclosure of all proposals
Franklin L. Kury, Esqui re
April 3, 1986
Page 3
considered and contracts awarded. Any contract made in
violation of this subsection shall be voidable by a court
of competent jurisdiction if the suit is commenced within
90 days of making of the contract. 65 P.S. 403(c).
Generally, prior advices of the Commission have determined that this
Section may be applied to contracts made between the governmental body with
which an official is associated, and the official himself. See Domalakes,
83 -528. This open and public process would require public notice of the
contracting /job opportunity to public disclosure of all applications
considered and public disclosure of the selection made. In addition to the
foregoing, and as noted above, the individual must abstain from the entire
process and his abstention must be publicly recorded in the appropriate
authority minutes. See Brown, 83 -537.
We note, that you have not provided any specific details as to the
position of employment in which this member of the authority will serve. As a
result, we are unable to determine the nature and scope of his
responsibilities as an employee of the authority. In any event, it is advised
that as an authority member this individual, as a member, should abstain from
participating in any matter that comes before the authority which involves
actions that he took as an authority employee. In this respect, we note that
it would be most questionable for this individual, as an authority member, to
rule upon and make decisions about proposals and recommendations that he has
prepared as an employee. Clearly, the authority member would be in a position
of having to pass upon his own work as an employee. Depending upon the level
of employment that this member is assuming, the board may not be called upon
to review anything that he or she does as an employee. However, we make note
of this restriction in light of the fact that we have only general information
in this matter. Also, we note that as an employee, this individual may not
use any confidential information that he has received in his position as a
member to aide himself in his position of employment.
We specifically indicate at this point in time, that this analysis is
based only upon the requirements of the State Ethics Act. In your letter of
request, you have referenced to §7(c) of the Municipal Authorities Act. 53
P.S. §309(c). That provision of law provides that the members of the
municipal authority may fix and determine the number of officers, agents and
employees of the authority and may appoint to such office or offices any
member of the board with such powers, duties and compensation as the board may
deem proper. Our review of this section of the law indicates, however, that
there was a 1978 amendment to the law. A review of the amendment appears to
indicate that this particular provision of Section 309 may not have survived
the legislative change. (See Pocket Part, 53 P.S. §309(c)) In light of this,
it is not quite apparent as to whether this appointment is specifically
authorized by law at this point in time. In any event, there is nothing in
the Municipal Authorities Act, even if this provision of law is no longer in
existence, to indicate that such simultaneous service would be prohibited or
i ncompatible.
Franklin L. Kury, Esquire
April 3, 1986
Page 4
In the event that this section of the Act were to have indicated that
such simultaneous service was prohibited, then this individual, in assuming a
position of employment with the authority, would in effect be using his office
to obtain financial gain, his compensation as an authority employee, that is
specifically prohibited by law and, therefore, not in accordance with the
State Ethics Act. In light of the fact, however, that there appears to be no
specific prohibition of this type, then this specific concern is not at issue
at this time.
C. Conclusion: The Ethics Act does not per se prohibit a member of a
municipal authority from simultaneously serving in a position of employment
with that authority. This individual, as a public official, must conform his
conduct to the requirements of the State Ethics Act as set forth above. This
advice does not address the propriety of such simultaneous service under
Section 7(c) of the Municipal Authorities Act as amended.
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 i n 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.
Sin
John J. C. no
Ge ner. ounsel