Loading...
HomeMy WebLinkAbout87-588 FritschDear Mr. Fritsch: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 June 15, 1987 • ADVICE OF COUNSEL 87 -588 Mr. Dennis Fritsch 29 East Beau Street Washington, PA 15301 Re: Simultaneous Service, Sewage Authority Member and Secretary, and Sewage Authority Member and Private Engineer This responds to your letter of June 3, 1987, in which you, as Solicitor for the McDonald Sewage Authority, requested advice from the State Ethics Commission, on behalf of the authority members. Issue: You ask whether a member of a sewage authority may also be appointed to the compensated position of secretary to the authority when that member did not vote on his or her appointment. Secondly, you inquire as to whether a member of the sewage authority may also be privately employed as an engineer with an engineering firm that has been appointed as the authority engineering firm. Facts: A member of the McDonald Sewage Authority, hereinafter Authority, has been appointed to the compensated position of secretary to that Authority. The member of the Authority who has been appointed secretary did not vote on his or her appointment to that position. Additionally, another member of the Authority simultaneously holds the position of member of the Authority and private engineer with an engineering firm that has been appointed as the Authority engineering firm. Discussion: It is assumed, for purposes of this advice and response, that the members of the Authority are to be considered a "public employee" or "public official" as those terms are defined in the State Ethics Act. See Section 2, State Ethics Act, 65 P.S. 402. As a public official and /or employee, the members conduct must conform to the provisions of the State Ethics Act. The most pertinent provision of the State Ethics Act is Section 3(a) of the Ethics Act as follows: Mr. Dennis Fritsch June 15, 1987 Page 2 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). Of course, under this provision, a member may not use his or her public position to secure any financial gain as secretary to the Authority. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if the member were to serve both as a public official and /or public employee and as secretary of the Authority. See also §309(c) of the Municipal Authority's Act, infra. Basically, the Ethics Act does not state that it is inherently incompatible for a public official and /or employee to serve as secretary to the Authority. The main prohibition under the Ethics Act and opinions of the Ethics Commission is that a member of the Authority may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano, 80 -007. In the first situation outlined above, a member of the Authority who is also secretary would not be serving entities with interests which are adverse to each other. With regard to the second inquiry as to whether a member of the Authority may also be employed as a private engineer with the Authority engineering firm, the above discussion regarding public employees and restricted activities is applicable. Section 3(a) of the Ethics Act does provide that no public official or public employee shall use his public office or any confidential information obtained through holding of a public office or position to acquire financial gain for himself, his immediate family, or a business with which he is associated. See 65 P.S. 403(a). A "business with which he is associated" is defined in the Ethics Act as follows: "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. Since the Authority member who is also an employee of the Authority's engineering firm, he or she is a director, officer, owner, or employee or holder of stock of the business (engineering firm) which is associated with the Authority. As such, the authority member who is also employed by the Authority engineering firm would be "associated" with that business and would be required to observe the prohibitions set forth in Section 3(a) of the Ethics Act. This means that the member could not use his Authority position to secure financial gain for engineering firm and could not use any confidential information acquired through the holding of public office or employment to the benefit of that business. Mr. Dennis Fritsch June 15, 1987 Page 3 In addition to the foregoing, the Ethics Act provides that this Commission may address other areas of conflict. 65 P.S. §403(d). The parameters of the types of activities encompassed, by the above provision, are generally determined through a review of the scope and intent of the State Ethics Act. Generally, the Act was promulgated in order to ensure the public that the interest of their officials and employees are not in conflict with the public trust. 65 P.S. §401. As such, this Commission has determined that public officials would be in a prohibited conflict in any situation wherein they attempted to serve one dr more interests that are adverse. See, Alfano, 80 -007; Fritizinger, 80 -008. Within this general conflict provision, it is clear, that a public official should abstain from participating in any matter wherein they have a direct interest. In determining the applicability of the Ethics Act to the question of the simultaneous service of< Authority member and private employee of the Authority engineering firm, it is necessary to review the Municipal Authority's Act of 1945, P.L. 382 as amended 53 P.S. §312 which provides under subsection D: "No member of the Authority or officer or employe thereof shall either directly or indirectly be a party to or be in any manner interested in any contract or agreement with the Authority for any matter, cause or thing whatsoever by reason whereof any l i a b i l i t y or indebtedness shall in any way be created against such Authority. If any contract or agreement shall be made in violation of the provisions of this section the same shall be null and void and no action shall be maintained thereon against such Authority." Under the Ethics Act, the stated purpose of that Act must be observed which is to strengthen the faith and confidence of people in their government by assuring the public that the financial interests of the holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. See Section 1 of the Ethics Act, 65 P.S. 401. Further, it should also be noted that the State Ethics Act is to be construed broadly in its coverage and any exclusions thereof are to be construed narrowly. See Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491 (1984). In the second situation outlined above, there would be a conflict with a member of the Authority simultaneously serving as a member of the Authority and an employee of the Authority engineering firm. The member of the Authority should resign from one of his two conflicting positions. It is noted that this Advice is issued solely under the Ethics Act and should not be understood to serve as "clearance" to operate as outlined above under any codes, statutes, ordinances, regulations, etc. other than the Ethics Act. Mr. Dennis Fritsch June 15, 1987 Page 4 Conclusion: Under the first circumstance outlined above, there is no inherent prohibition under the Ethics Act for the Authority member to serve both as a public official and /or employee and as secretary to the Authority. Accordingly, he or she, consistent with the Ethics Act, may serve in these capacities simultaneously. However, in the second situation, there is an inherent conflict when a member of the Authority simultaneously serves as an engineer in the Authority engineering firm. In that circumstance, the member of the Authority should terminate one of the two conflicting positions. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully al41 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. Sincerely, apko Vincent J' Dopko General Counsel