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HomeMy WebLinkAbout86-570 NewtonLawrence L. Newton, Esquire P.O. Box 375 331 Penn Street Huntingdon, PA 16652 Re: Borough Mayor, Borough Employee, Simultaneous Service Dear Mr. Newton: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 June 16, 1986 ADVICE OF COUNSEL 86 -570 This responds to your letter of April 22, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the mayor of a horough may simultaneously serve as a borough employee on a part -time basis. Facts: You have requested the advice of the State Ethics Commission in relation to the above issue on behalf of Mr. N. Dale Wakefield, Jr., the Mayor of the Borough of Rockhill. You advise that it is the intention of the borough to hire a maintenance worker on a part -time basis for the borough. This individual would work twenty to twenty -five hours per week and his general duties would be to patch holes, clean ditches, straighten signs and perform other duties in relation to borough maintenance. You further advise that Mr. Wakefield would be reporting directly to the President of the Rockhill Borough Council, Herbert E. Snyder, Jr. Discussion: As the mayor of a borough, Mr. Wakefield is,a public official as that term is defined in the State Ethics Act and, as such, his conduct must conform to the requirements of the Act. See, Domalakes, 85 -010; 65 P.S. X402. 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). Lawrence L. Newton, Esquire June 16, 1986 Page 2 Within the above provision of law, no puhlic official, including a horough mayor, may use his puhlic office in order to ohtain a financial gain other than the compensation provided for by law. Within this provision therefore, a horough mayor may not appoint himself to a position of employment within the township. If it is the mayor who is making the appointment, then Mr. Wakefield may not ohtain the position as indicated above as such would he a use of puhlic office in violation of the Act. See, Meixell v. Hillertown Borough, 370 Pa. 42.0, 88 A.2d 594, (1952). In addition to the foregoing, the above provision of law also provides that no public official may use confidential information in order to obtain a financial gain. Mr. Wakefield, therefore, cannot use any confidential information he obtained in his puhlic position in order to he appointed to the part -time position of employment. In addition to the foregoing, it is noted that Section 403(c) of the State Ethics Act provides that no public official may enter into a contract with his own governmental body in excess of $500 unless the award of such contract is effected through an open and puhlic process. 65 P.S. V403(c). This Commission has previously determined, on a number of occasions, that the above provision of law would require that a public official, prior to obtaining a position of employment with his own governmental hody, insure that the position is publicly announced prior to the award of said position and that the governmental body also make known publicly all proposals received and applicants considered in relation to the award of the position. In addition, the puhlic official who is an applicant for said position may not participate to any degree and the governmental body's decision as to the structuring of the position and the review and consideration of applicants for the position, including a determination as to who will receive the position, See King, 85 -025. The State Ethics Act, in addition to the foregoing, also permits the State Ethics Commission to address other areas of possible conflict. 65 P.S. §403(d). The parameters of the types of activities encompassed by the above provision of law are generally determined by reviewing the intent and purpose of the State Ethics Act as outlined in Section 1 of that law. Pursuant to that provision, the Ethics Act was intended to ensure that the financial interests of public officials do not conflict with the puhlic trust. 65 P.S. §401. In relation to this provision of law, it is clear that several problems may develop by virtue of Mr. Wakefield's simultaneous service as horough mayor and a horough employee directly reporting to the president of horough council. In the first instance as mayor, Mr. Wakefield must have a constant interaction with the borough council. He may be called upon to vote in order to break tie votes of borough and he also is responsible for signing horough ordinances passed by the council. As mayor, he must exercise his independent judgement in relation to the activities of council on behalf of the public which he has been elected to serve. As an employee of the borough, however, he will be directly reporting to the president of horough council and in this respect, he will be answerable directly to the borough council and responsible to them. It is clearly possible that Mr. Wakefield's objective independent opinion as Lawrence L. Newton, Esquire June 16, 1986 Page 3 mayor could be influenced by the fact that he is reporting and responsible to the borough council as an employee. There can be no doubt that Mr. Wakefield may be placed in a conflicting position as he may at times be called upon to exercise his independent judgement as mayor in relation to matters in which the borough council and, in particular, the chairman of the council to whom he reports has been involved. In relation to this, there may always be in his mind the thought that this individual is his supervisor in relation to his position of employment and has the authority and capability of terminating his position of employment, as such, Mr. Wakefield would be placed in a conflicting position of serving the public interest as mayor and serving his own interest as a borough employee. Because of this, it appears as though substantial conflicts may develop and Mr. Wakefield may be better advised not to simultaneously serve in both positions. See, Welz, 86 -001. In addition to the foregoing, while we have addressed this issue only within the purview of the State Ethics Act, we do note that the Borough Code provides as follows: Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S. §46104. From the above provision of law, it appears as though even if a borough official may simultaneously serve in another borough position, the Borough Code places certain limitations upon the compensation that may be received. We advise that this Section of the Borough Code must be reviewed in order to determine if Mr. Wakefield's activities are in accord with said provision of law. Lawrence L. Newton, Esquire June 16, 1986 Page 4 Conclusion: While the State Ethics Act would place no per se prohibition upon a public official's simultaneous service in two public positions, the Ethics Act would prohibit the official's participation in relation to his own appointment to a position of employment by his governmental body. In addition to the foregoing, the State Ethics Act would require that the appointment of an individual to such a position, be conducted through an open and public process with prior public announcement of the position availability and public announcement of the applicants considered and the applicant chosen. It appears from the information presented and the respective duties of the individuals involved, that an inherent conflict of interest may develop in that the powers and duties of a borough mayor seem to indicate that said officials who operate as a check and balance on the borough council and if said individual who serves in this position is also an employee of the borough council, his independent and objective judgement may be hampered. As such, it is advised that Mr. Wakefield would be better advised not to accept the position of employment by the borough council. Finally, it is advised that the Borough Code may prohibit the receipt of compensation by a borough official by serving in other positions of borough employment. You are advised that this provision of law should be reviewed in order to determine its applicability. 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 crimi nal proceeding, providi ng 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. Si nc- -ly v ohn "J. ntin Gener. Counsel