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HomeMy WebLinkAbout87-657 MuoloRobert J. Muolo, Esquire P. O. Box 791 240 -244 Market Street Sunbury, PA 17801 Dear Mr. Muolo: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 1712C TELEPHONE: (717) 783 -16i3 December 30, 1987 ADVICE OF COUNSEL 87 -657 Re: Conflict of Interest, Borough Councilperson, Borough Health Board Member This responds to your letter of December 14, 1987, wherein you requested advice from the State Ethics Commission. Issue: Whether a member of a borough council may, consistent with the State Ethics Act, serve and receive compensation as a member of the Borough Health Board. Facts: You state that you are the solicitor for the Borough of Kulpmont, which is a municipality of approximately 3,800 residents located in Northumberland County, Pennsylvania. You state that the borough is in the process of appointing a new member to the Borough Health Board, a five member board created pursuant to the Borough Code, wherein a vacancy has occurred as a result of the election of said board member to the borough council. Although you state that the individual initially contemplated resigning from the Board of Health, you state that you could find no prohibition against this individual serving simultaneously as councilperson and member of the Board of Health. You also note that the position of Board Health member is an appointed not an elected one in the borough. You further state that you have been unable to determine whether a councilperson who is appointed to the Board of Health may receive compensation as a Health Board member. In this regard, you note that the limitation on the salary of borough councilpersons relates solely to their performance of duties as a councilperson. You then question whether a councilperson who would serve on the Board of Health may also receive additional compensation for the performance of duties in the latter position. Lastly, you note that the borough council, as a whole, makes appointments to the Board of Health and in light of the possible appearance of impropriety which might arise as a result of this appointment, you request advice from the State Ethics Commission concerning both the matter of the appointment and the compensation. Robert J. Muolo, Esquire December 30, 1987 Page 2 Discussion: As a member of the Borough Council of Kulpmont, the councilperson is a "public official" as that term is defined in the State Ethics Act. See Rider Order, 490 -R; 65 P.S. §402; 51 Pa. Code §101. As such, the councilperson is subject to the State 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 public office to obtain a financial gain other than compensation provided for by law for himself or a member of his immediate family. Under the above 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 "financial gain other than compensation provided by law." 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). Although the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the State Ethics Act, this Commission does not specifically have the statutory jurisdiction to interpret provisions of the Borough Code. However, if some other provision of law somehow impacts upon the provisions of the State Ethics Act or the Ethics Act accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bigler, 85 -020. Additionally, the Ethics Act allows the Commission to address other areas of possible conflict. 65 P.S. §403(d). This Commission has,determined that within the above provision of law, a public official may not accept any compensation to which he knows or otherwise should know he or she is not entitled. Huff, 84 -015; Domalakes, 85 -010. The Commission's determination was founded on the intent of the Act which is primarily concerned with Robert J. Muolo, Esquire December 30, 1987 Page 3 insuring that the financial interests a public official are not in conflict with the public trust. 65 P.S. §401. Within this provision of law, the %ommission has determined that when a public official accepts compensation to which he or she by law is not entitled, the financial interests of said official are in conflict with the public trust. Applying the above principles to the instant situation, it is necessary to review the relevant provisions of the Borough Code. The Borough Code provides, in part, as follows: "Councilmen may receive compensation to be fixed by ordinance at any time and from time to time as follows: In boroughs with a population of less than five thousand, a maximum of fifteen hundred dollars ($1500) a year..." 53 P.S. §46001 It is further provided in the Borough Code: "Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S. §46104. Robert J. Muolo, Esquire December 30, 1987 Page 4 Under the above provisions of the Borough Code and in particular, Section 1104, it is clear that a councilperson, although he may be appointed to serve on a board, may not receive compensation for such service. As previously noted, this Commission has determined that the receipt of any gain or benefit by a public official which is not authorized in law constitutes a "financial gain other than compensation provided by law" in violation of Section 3(a) of the Ethics Act. See McCutcheon, supra; Yocabet, supra. Having established that a borough councilperson may not receive compensation for simultaneous service as a member of a Borough Health Board, consideration now must be given as to whether that councilperson may simultaneously serve as a member of the Borough Health Board in a non - compensated status. Since the Ethics Act contains no per se prohibition against simultaneous service and since the Borough Code does allow for such service in certain enumerated instances, the councilperson, accordingly, could serve as a member of the Borough Health Board, provided he receive no compensation thereof, consistent with the provisions of the Ethics Act. Section 3(d) of the Ethics Act provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). The parameters of the activities encompassed by the above provision of the law generally are determined through the review and intent and purpose of the Ethics Act. The Ethics Act was promulgated in order to insure the public . that the financial interest of their officials do not conflict with the public trust. In this respect, if a member of the borough council seeks appointment to the Borough Health Board, he may not participate or vote regarding his appointment to the Borough Health Board. His abstention should be publicly noted as well as the reason for such abstention. Lastly, the questions which you have posed have only been addressed under the State Ethics Act. Conclusion: A member of the Borough Council of Kulpmont is a public official subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act, a borough official may simultaneously serve as a member`of the Borough Health Board but may not consistent with Section 3(a) of the Ethics Act receive any compensation for serving on that board. Under Section 3(d) of the Ethics Act, the member of the borough council may not participate or Note regarding his appointment to the position of Borough Health Board; in this regard he must note publicly his abstention and the reason for such abstention. Lastly, the propriety of the proposed conduct has only been addressed under the provisions of the State Ethics Act. Robert J. Muolo, Esquire December 30, 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 wi 1 1 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, a Vincent J. Dopko General Counsel