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HomeMy WebLinkAbout87-541 ZitoSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (7174783.1610 April 7 1987 ADVICE OF COUNSEL Augustus A. Zito 87 -541 510 East Second Street Emporium, PA 15834 Re: Simultaneous Service Borough Manager, Member Municipal Authority, General Manager Municipal Authority Dear Mr. Zito: This responds to your letter of February 20, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibitions upon your simultaneous service as a borough manager, a member of a municipal authority created by the borough, and general manager to the municipal authority. Facts: You advise that you have served as the borough manager for Emporium Borough since July 15, 1975. The position of borough manager was created by Ordinance 240 on June 1, 1958. Generally, the borough manager is the chief administrative officer of the borough, and he is responsible to borough council for the proper and efficient administration of the affairs of the borough. The borough manager generally supervises the activities of all municipal departments, with certain exceptions, and is responsible for the staffing of said departments within his supervision. The borough manager is also responsible for administration of the budget, borough finances, borough requisitions and purchases, as well as a number of other areas of responsibility involving the administration of the borough's activities. The ordinance further provides as follows: Except for the offices of borough secretary, receiver of wage taxes for Emprorium Borough and borough street commissioner and except as approved from time to time by a majority of all members of council, the manager shall hold no elected or appointed office under any law of the United States or Commonwealth of Pennsylvania. In addition to the foregoing, you were appointed by borough council as a member of the Emporium Borough Municipal Authority, an authority created pursuant to the Pennsylvania Municipal Authorities Act of 1945. 53 P.S. §301 et. seq. The municipal authority was originally created in order to operate Augustus A. Zito April 7, 1987 Page 2 and maintain the borough sewage system. Subsequent to its creation, the Emporium municipal authority was reorganized and became the Mid - Cameron Authority. The Authority, subsequent to this change, became involved with the operation and management of a multi- tenant /incubator complex known as the Emporium Trade Center. You were, once again, at that time appointed as a member of the authority and were also elected as the authority's secretary /treasurer. On July 20, 1986, the Mid - Cameron Authority created the position of general manager. The general manager, generally, is the chief administrative officer of the authority. He is responsible to the authority for the proper and efficient administration of the authority. He is responsible for supervising personnel, hiring, administration of the budget, financial status of the authority, and compliance with authority leases, permits and privileges. Additionally, the general manager is responsible for the letting of contracts and for insuring that all monies due the authority are paid. He is also the chief purchasing officer for the authority. You advise that you abstained from voting on the election of a person to fill the newly created position of authority general manager. You advise that the authority has offered you the opportunity to become the general manager. You have requested the advice of the State Ethics Commission regarding whether such simultaneous service in the positions outlined above is appropriate under the provisions of the State Ethics Act. Discussion: As a borough manager, you are clearly a public employee as that term is defined in the State Ethics Act and the regulations of the State Ethics Commission. 65 P.S. §402; 51 Pa. Code §1.1. Additionally, as a member of a municipal authority, and as general manager to said authority, you also must be considered a public official /emplopyee within the purview of the State Ethics Act. See Dice, 85 -021. As such, your conduct must conform to the requirements of tFe State Ethics Act. Generally, the 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). Augustus A. Zito April 7, 1987 Page 3 Within the above provision of law, no official may use his public position in order to obtain a financial gain for himself and no public official or employee may use confidential information for similar purposes. Within the above provision of law, this Commission on a number of occasions has determined that no public official may participate in any matter wherein they have a personal, financial interest. In this respect, the Commission has determined that a public official may not participate in their own appointment to a position of employment within their own governmental body. See Koslow. Thus, while this Commission has on a number of previous occassions indicated that, there would be no absolute prohibition upon simultaneous service by a member of a municipal authority as an employee of that authority, the Commission has set forth certain restrictions and guidelines that would be applicable thereto. Initially it should be noted, that the Municipal Authorities Act of 1945, appears to contemplate the possibility of a member of the authority serving in a position of employment with that governmental body. In this respect, the law prT!ides as follows: The board shall fix and determine the number of officers, agents and employes of the Authority and their respective powers,. duties and compensation 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. Within the provisions of the Ethics Act, however, as a member of the : aunicipal Authority, you may not participate or vote in that governmental body's decision to enter into a contract with you for the position of genec%1 manager of the Authority. See King, 85 -025. Additionally, not only must you refrain from participating in the decision to enter into a contract as the genera.' manager, you also must refrain from participating in the fixThg o` compensation, the terms and conditions of employment, or any other benefit attendant to the position of general manager. Your abstention in suc>> matters, as a member of the Authority, must be publicly noted and recorded in the Authority minutes. We note, that as borough manager, you would not be in a position to make any appointments of yourself in relation to the municipal authority or the position of general manager to that authority, and thus, it does not appear as though the ab we concerns would be applicable in relation to your position with the borough. In addition to the foregoing, however, the Ethics Commission is also authorized to address other areas of possible conflicts of interest. 65 P.S. §403(d). The type of activities that are subject to review by the Commission, within this provision of law, are determined through a .'avlew of the intent and purpose of the Ethics Act as set forte in §401 tt,ereaf. That section Augustus A. Zito April 7, 1987 Page 4 provides that the conduct and activities of public officials may not conflict with the public trust. The Commission has thus previously determined, that a conflict of interest would arise in any situation where the public official serves one or more interests that are adverse. See Alfano, 80 -007; Allen, 79 -024. It is clear, that municipal authorities are not creatures, agents or representatives of the municpalities which organize them, but are rather independent agencies of the commonwealth and part of its sovereignty. Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 888, (1971). It is clear, therefore, that there may be occasions where the interests of the independent municipal authority are adverse to the interest of the municpality that created that authority. The converse of this may also be true. For example, as an employee of the borough, specifically. borough manager, you are responsible for the effective and efficient administration of that municipality. You may, at sometime, he called upon in that posijon to take action, at the direction of borough council, regarding matters that are submitted to the borough by the authority or that relate to the authority generally. Becuase of these varying possibilities, there is no doubt that your position, as borough manager, could be in conflict with your positions on the municipal authority. As a borough manager, you are obligated to serve the best interest of the borough. However, as a member of the municipal authority and as the authority's general manager, your duties lie with that governmental body. There is no doubt that there are occassions when these interests could be adverse. As such, as an employee of the borough, you must refrain from participating in any matter that relates to the municipal authority. Additionally, as a member of the authority and as a general of thl authority, you must similarly refrain from participating in any matter that relates to the borough. See Cole, 86 -503. Your abstentions in all such matters should be publicly noted and appropriately recorded. Finally, it is also advised that as a member of the authority, you not participate in any matter or review of any items that are recommended or submitted by yourself as general manager. In this respect, you would not be put in the position of having to reviewing or approve your own work as general manager. Situations could arise where the interests of the authority are adverse to the interest of the general manager. For example, the authority could wish to investigate the activities or affairs of the general manager and his operational functions as general manager. Of course, you as a member of the authority would be placed in an adverse situation should you have to be considering, reviewing situations involving questions of your own work. As such, you as a member of the municipal authority, must not participate in any matter that relates to your position as general manager. Conclusion: While the Ethics Act presents no per se prohibition upon your simultaneous service as borough manager, member of a municipal authority created by the borough and general manager for the borough, as a public official /employee your conduct must conform to the requirements of the State Ethics Act as outlined above. Appropriate abstentions as noted in the foregoing advice must be publicly noted and recorded. Augustus A. Zito April 7, 1987 Page 5 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 clays of service of this Advice pursuant to 51 Pa. Code 2.12. Sin on no Acti g General Counsa1