HomeMy WebLinkAbout17-575 YoungsSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800 -932 -0936
ADVICE OF COUNSEL
November 16, 2017
To the Requester:
Mr. Christopher J. Youngs, Esquire
Pepicelli, Youngs and Youngs PC
17 -575
Dear Mr. Youngs:
This responds to your letter dated October 3, 2017 by which you requested an
advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P.TS. § 1101 et.-seq., would impose prohibitions or restrictions upon a borough council
memberwith regard to simultaneously serving as a full -time maintenance/road crewworker
for the borough.
Facts: As Solicitor for the Borough of Cochranton ( "Borough'), located in Crawford
UOB Pennsylvania, you have been authorized by Ryan Sekerski ( Mr. Sekerski "), who is
ough Cou ncil Member, to request an advisory from the Commission on his behalf.
ave submitted facts, the material portion of which may be fairly summarized as
follows.
The Borough has a population of approximately 1, 100. The Borough has begun the
process to hire a full -time worker to fill a vacant position on the Borough's two - person
maintenancelroad crew. The Borough's maintenance/road crew workers are supervised by
the Borough Manager, who in turn is supervised by Borough Council. The President of
Borough Council occasionally directs the Borough's maintenance/road crew workers. The
duties and responsibilities of the Borough's maintenance/road crew workers include
maintaining Borough streets and other Borough property, plowing snow, performing
general labor, maintaining and repairing the Borough's water and sewer systems when
qualified to do so, and performing other duties as may be assigned from time to time by the
Borough Manager or Borough Council.
Mr. Sekerski wishes to apply and be considered for the vacant position on the
Borough's maintenance/road crew.
The narrow question that you have posed is whether the Ethics Act would permit Mr.
Sekerski to simultaneously serve as a Borough Council. Member and a full -time
maintenance/road crew worker for the Borough.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of
the -ELF Ethics Act, 65 Pa.C.S. §§ 1 107(10), (11), advisories are issued to the requester based
PAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethics9state.pa.us
Yo�ung_s, 17 -575
November 16, 2017
Page 2
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requester to truthfully disclose all of the material facts
relevant to the inquiry. 65 Pa.C.S. §§ y 1107(10), (11). An advisory onl affords a defense
to the extent the requester has truthfully disclosed all of the material facts.
It is further initially noted that this Advice is limited to addressing the narrow question
posed.
As a Borough Council Member, Mr. Sekerski is a public official subject to the
provisions of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
0) Voting conflict. —Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or by
any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his interest
as a public record in a written memorandum filed with the
person responsible for recording the minutes of the meeting at
which the vote is taken, provided that whenever a governing
body would be unable to take any action on a matter before it
because the number of members of the body required to
abstain from voting under the provisions of this section makes
the majority or other legally required vote of approval
unattainable, then such members shall be permitted to vote if
disclosures are made as otherwise provided herein. In the
case of a three- member governing body of a political
subdivision, where one member has abstained from voting as
a result of a conflict of interest and the remaining two members
of the governing body have cast opposing votes, the member
who has abstained shall be permitted to vote to break the tie
vote if disclosure is made as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), Q).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest. " Use by a public
official or public employyee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
Your s, 17 -575
November 16, 2017
Page 3
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a member
of his immediate family or a business with which he or a
member of his immediate family is associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict"
or "conflict of interest," 65 Pa.C.S..5 1102, a public official/public employee is prohibited
from using the authority of public office /employment or confidential information received by
holding such a public position for the private ecuniary benefit of the public official/public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated. The use of authority of office is not limited
merely to voting, but extends to any use of authority of office including, but not limited to,
discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809.
In each instance of a conflict of interest, a public officiallpublic employee would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally,
the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied
in the event of a voting conflict.
In applying the above provisions of the Ethics Act to the question presented, it is
initially noted that the General Assembly has the constitutional power to declare by law
which offices are incompatible. Pa. Const. Art. 6, § 2.
It is further noted that the Borough Code provides, in pertinent part, as follows:
§ 1104. Appointments and incompatible offices.
(a) General rule. --
Unless there is incompatibility in fact, an 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 under the statute.
(b) Prohibition.
(1) Except as set forth in paragraph (2), no
elected borough official of a borough with a
population of 3,000 or more may serve as an
employee of that borough.
(2 ) Paragraph (1) shall not apply to a borough
official serving as an employee of that borough
prior to the certification of the 2010 official
census or a subsequent latest official census
Young _s, 17 -575
oN vember 16, 2017
Page 4
which indicates an increase in the population of
that borough to 3,000 or more.
(c) Multiple offices. --
If there is no incompatibility in fact and subject to
subsection (a) 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, secretary
or treasurer.
(h) Construction. --
Nothing contained in this section shall be construed to
affect the eligibility of a borough official to hold any other public
office or receive compensation.
8 Pa.C.S. § 1104.
You are advised that there does not appear to be any statutorily - declared
incompatibility that would preclude Mr. Sekerski from simultaneously serving as a Borough
Council Member and a full -time maintenance /road crew worker for the Borough.
Turning to the question of conflict of interest, where simultaneous service would
place the public official /public employee in a continual state of conflict, such as where in
one position he would be accounting to himself in another position on a continual basis,
there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent
conflict would exist, it would appear to -fie impassible, as a practical matter, for the ublic
official /public employee to function in the conflicting positions without running afoul of
Section 1103(a) of the Ethics Act.
Absent a statutorily- declared incompatibility or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously serving in
more than one position. However, in each instance of a conflict of interest, the individual
would be required to abstain from participation, which would include voting unless one of
the statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to
be satisfied in the event of a voting conflict.
In this case, based upon the facts that have been submitted, there does not appear
to be an inherent conflict that would preclude Mr. Sekerski from simultaneously serving as
a Borough Council Member and a full -time maintenancelroad crew worker for the Borough.
Consequently, such simultaneous service would be permitted within the parameters of
Sections 1103(a) and 11030) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: Based upon the submitted facts that: (1) Ryan Sekerski ( "Mr.
Se c�ki"T—is a Member of Council for the Borough of Cochranton ( "Borough "), located in
Crawford County, Pennsylvania; (2) the Borough has a population of approximately 1,100;
(3) the Borough has begun the process to hire a full -time worker to fill a vacant position on
the Borough's two - person maintenancelroad crew; (4) the Borough's maintenancelroad
crew workers are supervised by the Borough Manager, who in turn is supervised by
Borough Council; (5) the President of Borough Council occasionally directs the Borough's
maintenancelroad crew workers; (6) the duties and responsibilities of the Borough's
maintenancelroad crew workers include maintaining Borough streets and other Borough
Youngs, 17 -575
November 16, 2017
Page 5
property, plowing snow, performing general labor, maintaining and repairing the Borough's
water and sewer systems when qualified to do so, and performing other duties as may be
assigned from time to time by the Borough Manager or Borough Council; and (7) Mr.
Sekerski wishes to apply and be considered for the vacant position on the Borough's
maintenance/road crew, you are advised as follows.
As a Borough Council Member, Mr. Sekerski is a public official subJJ'ect to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101
et se q. Subject to the restrictions, conditions and qualifications set forth above, Mr.
S7ekerski may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a
Borough Council Member and a full -time maintenance/road crew worker for the Borough.
Lastly, the propriety of the proposed course of conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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, provided the requester 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 orif,you have anyreason to
challenge same, you may appeal the Advice to the full Commission. A
personal appearance before the Commission will be scheduled and a
formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actualiv received
at the Commission within thirty (30) days of the date of this Advice
pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the
Commission by hand delivery, United States mail, delivery service, or by
FAX transmission (717-787-0806). Failure to file such an appeal at the
Commission within thirty (30) days may result in the dismissal of the
appeal.
Sincerely,
rol�inll. Hittie
Chief Counsel