HomeMy WebLinkAbout86-595 TurrellJ. Joel Turrell, Esquire
119 Warren Street
P.0.. Box 89
Tunkhannock, PA 18657
Dear Mr. Turrell:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
August 27, 1986
ADVICE OF COUNSEL
86 - 595
Re: Simultaneous Service, Second Class Township Supervisor, Member, Municipal
Authority
This responds to your letter of August 14, 1986, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether a supervisor, in a township oethe second class, may
simultaneously serve as a member of a township municipal sewage authority.
Facts: You serve as Solicitor for Overfield Township, Wyoming County,
Pennsylvania. In this capacity you have requested the advice of the State
Ethics Commission regarding the above issue. You indicate that approximately
three years ago, Overfield Township created the Lake Winola Sewage Authority.
The authority serves an area within the borders of Overfield Township, but it
does not encompasg` the entire township and there are no plans to do so in the
near future. You further advise that one of the members of the township board
of supervisors will be hired as an employee of the municipal sewage authority.
This individual does not serve as a member of the board of that authority.
You have regt':sted the advice of the State-Ethics Commission regarding whether
there is any prohibition under the State. Ethics.. Act regarding such
simultaneous service.
Discussion: As a supervisor in a township of the second class, the individual
who you represent and on whose behalf you have requested the State Ethics
Commission's opinion, is to be considered a public official within the purview
of the State Ethics Act, 65 P.S. 002. As such, his conduct must conform to
the requirements of the State Ethics Act. See, Sowers, 80 -050.
J. Joel Turrell, Esquire
August 27, 1986
Page 2
Initially, it is noted, that neither the Second Class Township Code, 53
P.S. §65101 et. seq., nor the Pennsylvania Municipal Authorities Act, 53 P.S.
§301 et. seq., appear to place any prohibition upon the simultaneous service
by a township supervisor as an employee of a municipal authority.
Generally, the Ethics Act does provide 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).
Within the above provision of law, public officials, including township
supervisors, may not use their public position in order to obtain any
financial gain for themselves or for a member of their immediate family other
than the compensation provided for by law. In light of this particular
provision of law, this Commission has previously ruled that a public official
may not participate or vote in his own governmental body's decision to appoint
him to a compensated position. See, King, 85 -025. The Commission has
determined that in such situations, a public official would be placing himself
in a position to receive compensation even though that person does not
actually set the amount of such compensation.: This type of activity, the
Commission has determined, while it may be considered an indirect benefit, is
nonetheless not so remote as to completely alleviate the concerns that gave
rise to the promulgation of the State Ethics Act. It is clear, that a public
official may not participate in any matter where he has a direct, personal, or
pecuniary interest. See, Reckner v. German Township School District, 341 Pa.
369, (1941); Commonwealth v. Roudenbush, 249 Pa. 86, 99 A. 555, (1915);
Meixell v. Hilla,rdtown Borough, 370 Pa. 420 88 A.2d 594, (1952). In the
instant situation and under the laws that currently exist, the township board
of supervisors has no authority or control over a sewage authority after that
municipal authority has been created. Municipal authorities generally are
entities of the Commonwealth and not of.the township or municipality which has
created them. See, Commonwealth v. Erie Metropolitan Transit Authority, 444
Pa. 345, 281 A.2d 82, (1971). Thus, in relation to this situation, it does
not appear as though this individual would have any authority or control over
appointing himself as an employee of the municipal authority. Such
appointment must be accomplished by the members of the board of the municipal
authority.
J. Joel Turrell, Esquire
August 27, 1986
Page 3
The Ethics Act does provide, however, as follows:
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
Reference is made to this particular provision of law, not to imply that
any violation has or will occur, but merely to provide a complete response to
your question.
In addition to the foregoing, the State Ethics Act also allows the
Commission to address other areas of possible conflict. 65 P.S. §403(d). The
parameters of the types of activity encompassed by this provision of law are
generally determined by a review of the nature and extent of the purpose of
the State Ethics Act. Generally, the State Ethics Act was promulgated in
order to ensure the public that the interest of their officials do not
conflict with the public trust. 65 P.S. §401. Such a conflict will develop
whenever a public official attempts to serve one or more interests that are
adverse. See, Alfano, 80 -007. In the instant situation, it is clear, that as
a member of the township board of supervisors, the individual involved in this
particular situation may, at times, be called upon to perform certain township
activities in relation to the municipal authority. The township, for example,
may be called upon to vote on proposals submitted by the municipal authority
which need township approval. Additionally, the township board of supervisors
may be called upon to investigate the finances of the municipal authority or
may otherwise be called upon to appoint members to the municipal authority
when a vacancy occurs. In this respect, it is clear that as a member of the
township board of supervisors, the individual involved would be participating
in actions that would relate to the authority that employs him. For example,
if he were called upon to vote on the appointment of an individual member to
the authority he would be voting on the appointment of an individual who would
subsequently control him as an employee of the authority. There is no doubt
that a clear conflict of interest would develop in this situation and that he
would be seeking to appoint an individual who would no doubt, be favorable to
him as an employee. As a result of such situations, the township supervisor
involved must not participate, as a township board member, in any matter that
J. Joel Turrell, Esquire
August 27, 1986
Page 4
relates to the township municipal authority. His abstention, in all municipal
authority matters, must be publicly noted and the reasons for such abstention
must also be noted. His abstention and the reason, therefore, must be
publicly recorded in the appropriate township minutes. See, Marsilio, 86 -500;
Cole, 86 -503.
We do note that the Second Class Township Code does provide that no
township supervisor may serve in any township position or office other than
roadmaster, laborer, superintendent or secretary /treasurer. In the instant
situation, however, it does not appear as though this particular provision of
the code would be applicable in that the position which he would be serving
while located physically within the township, would be in relation to a
position on a municipal authority which is not a township entity. Such
authorities, as previously noted, are agents of the Commonwealth.
Conclusion: The State Ethics Act presents no per se prohibition upon the
simultaneous service by a township supervisor as an employee of a municipal
authority within the township. As a member of the township board of
supervisors, said individual must abstain from participating in any matter
that comes before the board of township supervisors relating to the township's
municipal authority. In addition, the township supervisor should be aware of
Section 403(b) of the State Ethics Act which has been set forth above.
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.
Si nc
1
n J. C•i no
General' ounsel