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Home My WebLink About17-582 GallagherPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 Z� STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL December 18, 2017 To the Requester: Mr. Michael D. Gallagher, Esquire Murrin, Taylor & Gallagher Dear Mr. Gallagher: FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov This responds to your letter dated October 30, 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 F—a.TS. § 1101 et seer.., would impose prohibitions or restrictions upon an individual with regard to simultaneously serving as a township manager and a member of a municipal authority board. Facts: As Solicitor for Adams Township ("Township'), located in Butler County, Pennsylvania, you have been authorized by the Township Board of Supervisors to request an advisory from the Commission based upon the following submitted facts. The Township Board of Supervisors is considering appointing an individual the "Individual") who is a Township employee to the position of Township Manager. The Individual is a Township resident. The Township Board of Supervisors is also considering appointing the Individual as a Member of the Board of the Adams Township Water Authority ("Authority"). You ask whether the Ethics Act would permit the Individual to simultaneously serve as the Township Manager and a Member of the Authority Board. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e Ethics Act, 65 Pa-C.S. §§ 1107(10), (11), advisories are issued to the requester based 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. §§ 11070O0 , (11). An advisory only affords a defense to the extent the requester has truthfully discllosed all of the material facts. If the Individual would be appointed as the Township Manager, the Individual would in that capacity be a public official/public employee subject to the provisions of Gafleca her, 17-582 D ember 18, 2017 Page 2 the Ethics Act. If the Individual would be appointed as a Member of the Authority Board, the Individual would in that capacity be a public official subject to 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 Ed 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), 0). Subject to the statutory exclusions to the Ethics Act's definition of the term it or "conflict of interest," 65 Pa.C.S. § 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 pecuniary 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 official/public 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. There does not appear to be any Galls he_r, 17-582 ecp ember 18, 2017 Page 3 statutorily -declared incompatibility that would preclude the Individual from simultaneously serving as the Township Manager and a Member of the Authority Board. 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, McC�, Oppinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public 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. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude the Individual from simultaneously serving as the Township Manager and a Member of the Authority Board. 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) the Board of Supervisors of AdamiT—Township "Township"), Butler County, Pennsylvania, is considering appointing an individual (the "Individual") who is a Township employee to the position of Township Manager; {2} the Individual is a Townshipresident; and (3) the Township Board of Supervisors is also considering appointing the Individual as a Member of the Board of the Adams Township Water Authority ("Authority"), you are advised as follows. If the Individual would be appointed as the Township Manager, the Individual would in that capacity be a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seg. If the Individual would be appointedas a Member of the Authority Board, the Individual would in that capacity be a public official subject to the Ethics Act. Subject to the restrictions, conditions and qualifications set forth above, the Individual may, consistent with Section 1103 a) of the Ethics Act, simultaneously serve as the Township Manager and a Member of the Authority Board. lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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 or if you have any reason 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 actually, received at the Commission within thirty (30) days of the date of this Gallagher, 17-582 ecD ember 18, 2017 Page 4 Advice pursuant to 51 Pa. Code § 93.2(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, .,in . Hittie Chief Counsel