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HomeMy WebLinkAbout88-653 MuoloRobert J. Muolo, Esquire P.O. Box 791 240 -244 Market Street Sunbury, PA 17801 Dear Muolo: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 29, 1988 88 -653 Re: Simultaneous Service, Township Supervisor and Municipal Authority Employee This responds to your letter of October 6, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a municipal authority employee from also serving or being employed as a township supervisor. Facts: You state that you are the solicitor for the Board of Supervisors of East Cameron Township and the East Cameron Township Municipal Authority which provides water services for the residents of the Village of Gowen City located within East Cameron Township. You have also telephonically advised that you are asking the above question on behalf of the public officials whose conduct is in question. You state that the East Cameron Township Municipal Authority, hereinafter Authority, has seven members and that one of those members has been appointed by the other six members as a laborer in charge of the water facility. Additionally, you state that in the past month a vacancy has occurred on the Board of Supervisors and the Board has appointed the Authority employee /laborer to the Board. After noting that the Authority member intends to resign his position as member but not laborer, you assert that the foregoing is not required and then request advice as to whether the Authority laborer may serve on the Board of Supervisors. You state that the Authority laborers compensation would have to be established by the auditors and that you can find no prohibition for his employment by the Authority as laborer provided his compensation is set by the auditors. You assert that you reached the foregoing conclusion by the analysis of areas of compensation for a Robert J. Muolo, Esquire November 29, 1988 Page 2 supervisor employed by a township. You analogize that if a supervisor is employed by the township with auditor set compensation, you conclude that he similarly can serve as an employee of the Authority provided his position as laborer and compensation is also set by the auditors. After asserting that you can find no case law or previous interpretations by the Commission, you conclude by requesting advice as to whether a member of the Board of Supervisors may simultaneously serve as a laborer for the Authority provided the compensation be established by the auditors. Discussion: As a Authority member for East Cameron, the individual is a "public official" as that term is defined in the Ethics Act. 65 P.S. 402; 51 Pa. Code 1.1. As such, his conduct 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Robert J. Muolo, Esquire November 29, 1988 Page 3 Under Section 3(a) of the Ethics Act, there does not appear to be a real possibility of any financial gain or inherent conflict arising if the individual were to serve both as a public official /township supervisor and as Authority employee /laborer. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as a Authority employee /laborer. See Virant, Advice 87 -525. 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 Opinion, 80 -007. In the situation outlined above, he would not be serving entities with interests which are adverse to each other. Section 31 b) of the Ethics Act provides: (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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which must be observed, a public official must neither offer nor accept anything of value on the understanding or with the intention that the public official's judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added 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. 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). However, under Section 3(d) of the State Ethics Act, the State Ethics Commission may address other areas of possible conflict of interest. 65 P.S. 403(d). The parameters of the Robert J. Muolo, Esquire November 29, 1988 Page 4 types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials do not conflict with the public trust or create the appearance of a conflict with the public trust. Although that there is no inherent conflict for the simultaneous service of this individual as township supervisor and Authority laborer, it is necessary to comment upon your statements that the compensation for the individual as an Authority laborer would be set by the Auditors. Although it is true that the compensation for working township supervisors is set by the auditors when they serve in one of the enumerated positions of superintendent, roadmaster, laborer or secretary /treasurer, it would seem in this instance that the foregoing would not be applicable since the Municipality Authoritys Act of 1945, 53 P.S. 309(C) provides that the Authority board would inter alia fix the compensation for its employees. Thus, unless there is a misunderstanding as to the structuring and relationship between the township and the Authority, generally these subdivisions are two separate entities and in which case the auditors would not have the responsibility for setting the salary of employees of the Authority, that being the responsibility of the Board of the Authority. It is assumed for purposes of this advice that the auditors would not be setting his salary; otherwise, a problem would arise because the individual would be attempting to be a working township supervisor without being in one of the permitted township positions. See Coltar v. Warminster Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859 (1973). Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: As Authority member for East Cameron Township, the individual is a "public official" subject to the provisions of the State Ethics Act. As a public official, he may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of township supervisor and township authority employee /laborer, subject to the qualifications as noted above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Robert J. Muolo, Esquire November 29, 1988 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 material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as 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. Vincent J`: Dopko General Counsel ncerely, 1 .