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HomeMy WebLinkAbout87-630 CalarieDear Mr. Calarie: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 November 18, 1987 ADVICE OF COUNSEL Lee J. Calarie, Esquire Cal l as -Cari no Building 87 -630 310 Market Street Kittanning, PA 16201 Re: Simultaneous Service, Municipal Authority Member, Municipal Authority Employee This responds to your letter of August 20 and November 2, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether a municipal authority member may also serve as a municipal authority employee. Facts: You state that you are the solicitor for the Cowanshannock Township Municipal Authority, hereinafter Authority, which would like to employ one of its members as a part -time employee. After stating that there is no formal written job description for this position, you state that the authority member would perform those duties of a full -time authority employee consisting of scheduling work, helping full -time employees where extra help is needed, conducting routine inspections of the Authority's pumping and treatment facilities and performing some emergency maintenance when necessary. You further state that the employee would basically work part -time in order to keep the system operating; the member's main responsibility would be in scheduling work and inspecting the operation of the water treatment system and pumping facilities. You then ask whether it would be permissible under the Ethics Act for the authority to employ this individual and, if so, what restrictions would be imposed upon the employment of that individual. Discussion: As a member of the Authority, the individual is a "public official" as that term is defined under the State Ethic Act. See Kreger, No. 595. Accordingly, the provisions of the Ethics Act are applicable to the Authority member. 65 P.S. §402. Lee J. Calarie, Esquire November 18, 1987 Page 2 Section 3(a) of the Ethics Act provides: 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). Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a fianancial gain other than compensation provided for by law. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. (1987) filed on September 18, 1987 at 834 C.D. 1986. However, Section 3(aT would not prohibit an Authority member from serving as an Authority part -time employee. Of course, under this provision, the Authority member may not use his public position to secure any financial gain for himself as authority employee. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if the authority member were to serve both as a public official and as authority employee. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve as an Authority employee. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano, 80 -007. In the situation outlined above, the Authority member would not be serving entities with interests which are adverse to each other. It is further provided in Section 3(b) of the Ethics Act: 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). Lee J. Cal ari e, Esquire November 18, 1987 Page 3 Specifically, the Ethics Act provides that no public official may use his public office or confidential information received through his holding public office to obtain financial gain for himself or a business with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b). It is assumed that such a situation does not exist here. Reference is made not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Reference must also be made to Section 3(d) of the Ethics Act which allows the Commission to review other areas of conflicts of interests. Generally, the types of activities encompassed by this particular provision are generally determined through a review of the intent of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to ensure the public that the interests of their officials do not conflict with the public trust or create the appearance of a conflict of interest. However, under this provision, the Authority member who is the candidate for the position of part -time Authority employee could neither vote nor participate as to his or her appointment as part -time Authority employee. Such abstention must be publicly noted and recorded together with the reason for the abstention. Lastly, the Ethics Commission has only addressed your question relative to the Ethics Act; it has not considered the applicability of any other statute, code, ordinance, regulation or any other code of conduct other than the Ethics Act. Specifically, the Commission has n one of their members the question of whether the members of the Authority may appoint the Municipal Authorities Act of 1945. Conclusion: As a member of the Cowanshannock Township Municipal Authority, the member is a public official subject to the provisions of the Ethics Act. Under the circumstances outlined above, there is no inherent prohibition under the Ethics Act for an authority member to serve both as a public official and as authority employee. The Authority member may not participate nor vote as to his or her appointment to the position of part -time Authority employee and must note his or her abstention of public record together with the reason for that abstention. Accordingly, the Authority member may, consistent with the Ethics Act, serve in these capacities simultaneously, subject to the limitations as noted above. Lastly, the Ethics Commission has only addressed a our thertstata tute, Ethics Act oornotherecodeeofpconducctlorythe any other ton statute, Municipal Authorities Act of 1945. Lee J. Cal a ri e, Esquire November 18, 1987 Page 4 Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and n the ggo evidence of good dor faith conduct in any other civil or criminal proceeding , p 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. VJD /sfd Sincerely, Vincent J. Dopko, General Counsel