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HomeMy WebLinkAbout87-643 ClippingerJames R. Clippinger, Esquire 3631 North Fron Street Harrisburg, PA 17110 Dear Mr. Clippinger: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 21, 1987 ADVICE OF COUNSEL 87 -643 Re: Simultaneous Service, Municipal Authority Member, Consulting Mechanical Engineer to School District This responds to your letter of November 19, 1987 , in which you requested advice from the State Ethics Commission. Issue: Whether the Ethics Act imposes any restrictions upon a member of a municipal authority who is appointed by the township commissioners from acting as a consulting mechanical engineer to an architect retained by the township school district. Facts: In your letter you state that you represent the Susquehanna Township Authority, hereinafter Authority. You further state that the members of the Authority are appointed by the elected commissioners of Susquehanna Township which is the governing body exercising jurisdiction over the Authority. You further state that one of the members of the Authority has indicated that he has been retained as a consulting mechanical engineer to an architect who has a contract with the Susquehanna Township School District. It is also stated by you that the school district is a separate entity but encompasses the same jurisdictional boundaries as the Authority. You also note that there has been a financial relationship between the Authority and the school district which has used the Authority to issue construction bonds; however, at the present time there is no existing relationship and all bonds have been retired. You conclude by asking whether a conflict of interest exists in light of the simultaneous service of this individual as a member of the Authority and as a consulting engineer to the school district. James R. Clippinger, Esquire December 21, 1987 Page 2 Discussion: As a member of the Municipal Authority, the member thereof is a "public official" as that term is defined in the Ethics Act. See Kreger, No. 595; 65 P.S. §402. As such, the individual is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. 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). Section 3(a) of the Ethics Act basically provides that a public official may not use his office or confidential information to obtain a gain other than compensation provided for by law . The Ethics Commission has determined that any use of public office, such as voting, participating, which results in any type of gain or benefit which is not provided for in law constitutes a "fi ananci al gain other than compensation provided by law" in violation of Section 3(a). See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Basically, the Ethics Act does not state that it is inherently incompatible for a public official and /or employee to serve as consulting engineer to a separate governmental body. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that a public official 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 he serving entities with interests which are adverse to each other. Of course, under this provision, he may not use his public position to secure any financial gain for the architect or his own consulting business. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if he were to serve both as a public official and as consulting engineer. James R. Clippinge r, Esquire December 21, 1987 Page 3 Section 3(h) of the Ethics Act provides: 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). 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). Lastly, the propriety of the proposed conduct has only addressed under the Ethics Act; the applicability of any other statute, code, regulation, ordinance or code of conduct other than the Ethics Act has not been considered. Specifically, not addressed in this advice is whether the above activity is permitted under the Municipal Authorities Act of 1945. Advice regarding the propriety of this activity under the Municipal Authorities Act must be addressed by the solicitor since that would not involve any interpretation of the State Ethics Act. Conclusion: As a member of the Susquehanna Township Authority, the Authority member is a "public official" subject to the provisions of the State Ethics Act. The Ethics Act would impose no per se prohibition upon a member of a Municipal Authority, the governing body of which is the township commissioners, from serving as a consulting mechanical engineer to an architect who has been retained by the school district. Lastly, it is noted that this advice has only interpreted the Ethics Act and has not considered the applicability of any other statute, code, ordinance, regulation, or other code of conduct and, specifically, has not addressed the propriety of this above activity under the Municipal Authorities Act. James R. Cli ppi nger, Esquire December 21, 1987 Page 4 Pursuant to Section 7(9)(1i), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other ci vi 1 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. Sincerely, �.w Vincent 'O. Dopko General Counsel