HomeMy WebLinkAbout19-524 MorganPHONE: 717-783-1610
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To the Requester:
Ms. Wilma J. Morgan
FNIMMM&RIIII& =1
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.etliiQs.pa.gov.
19-524
This res ands to your letter dated March 21, 20191 by which you requested an
advisory from t9e Pennsylvania State Ethics Commission (Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
Tra—TS. � 1101 et seq., would impose prohibitions or restrictions upon an individual
employed as the— Sewage Collector for the Shirley Township General Authority
("Authority"), who also serves as a Member of the Authority Board and as the Tax
Collector for Shirley Township ("Township"), with regard to simultaneously serving as
the Treasurer of the Authority.
Facts: You request an advisory from the Commission based upon the following
nutted facts.
You have served as the Township Tax Collector since 1998. You have been
employed as the Sewage Collector for the Authority since 2000. You have submitted a
job description for the position of Sewage Collector for the Authority, which document is
incorporated herein by reference. It is noted the per the aforesaid job description, the
Sewage Collector is responsible for, inter alia, maintaining sewage accounts, calculating
and printing billings, postin and pri-6—fing--d—aily payments, making daily bank deposits,
and preparing reports for The Authority Board that include charges, payments, and
deposits.
On January 31, 2019, the Township Board of Supervisors appointed you as a
Member of the Authority Board. You have been asked to fill the vacant position of
Treasurer of the Authority.
You have submitted a copy of a document that sets forth the powers and duties
of the Treasurer of the Authority, which document is incorporated herein by reference.
It is noted that per the aforesaid document, the powers and duties of the Treasurer of
the Authority include: (1) receiving and having charge of all money, bills, notes, bonds
and similar property belonging to the Authority; (2) 'issuing receipts and
acknowledgements for the payment of money and delivery of checks; (3) opening and
keeping special accounts with banks, savings and loans,
and trust companies; (4)
Moran, 19-52'4
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Page 2
endorsing and depositing checks, notes, and other obligations on behalf of the
Authority; (5) siginp and paying Authority checks; (6) rendering the Authority Board
a statement of the Treasurer s accounts; and (7) entering in boo s of the Authority a full
and accurate account of all money received and paid by the Treasurer on account of the
Authority.
Given that you already serve as the Sewage Collector for the Authority, a
Member of the Authority Board, and the Township Tax Collector, you ask whether you
may simultaneously serve as the Treasurer of the Authority.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 P a.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107'(10), (111). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To
the extent that your inquiry relates to cond2that has already, occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent your inquiry relates to future conduct, your inquiry may and shall be addressed.
As the Sewage Collector for the Authority, you are a public employee subject to
the provisions of the Ethics Act. As a Member of the Authority Board and as the
Township Tax Collector, you are a public official subject to the provisions of the Ethics
Act. If you would become the Treasurer of the Authority, you would in that capacity be a
public official subject to the provisions of the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) Voting conflict. --Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken publicly announce and disclose the nature Of his
interest as a public record in a written memorandum filed
with the person responsible for, recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three -member governing
' Morggn' , 19-524
vip Mav 2019
Page 3
body a subdivision, where one member has
abstained d from olivtjotai apolitical
as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), 0).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"'Conflict'" or "conflict of interest." Use by a public
official or public emplo ee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an indust occupation or
other 11 r group which includes the public o icial or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public emplo ee is
prohibited from using the �uthority of public office/employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. The use of
authority of office is not limited merely to voting, but extends to any use of authority of
office including, but not limited to, discussing, conferring with others, and lobbying for a
particular result. Juliante, Order 809.
In each instance of a conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
In applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to
declare by law which offices are incompatible, Pa. Const. Art. 6, § 2. There does not
appear to be any statutorily -declared incompatibility that would preclude you from
simultaneously serving as the Treasurer of the Authority where you are already serving
4aMorgan, 19-624
aZ
y 9, 2019
Page 4
as the Sewage Collector for the Authority, a Member of the Authority Board, and the
Township Tax Collector.
Where simultaneous service in particular positions would place a public
official/public employe in a continual state of conflict, such as where in one position
she would be accounting to herself in another position on a continual basis, there would
be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict
would exist, it would appear to be impossible, as a practical matter, for the public
official/public employee to function in the conflicting positions without running afoul of
Section 11 03(a) of the Ethics Act.
Based upon the submitted facts, there would be an inherent conflict that would
preclude you from simultaneously serving as the Treasurer of the Authority and the
Sewage ollector for the Authority. An inherent conflict would exist because as the
Sewage Collector for the Authority, you would be accounting to yourself as the
Treasurer of the Authority. Consequently, Section 1103(a) of the Ethics Act would
prohibit you from simultaneously serving as the Treasurer of the Authority where you
are already serving as the Sewage Collector for the Authority.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act,
Conclusion: As the Sewage Collector for the Shirley Township General
Authori th )rity"), You are a public employee subject to the provisions of the Public
offic ty Au � Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq. As a
ial E12 Employee
Member of the Authority Board and as the Tax Collector for Sh-5r16-y Township
("Township"), you are a public official subject to the provisions of the Ethics Act. If you
would become the Treasurer of the Authority, you would in that capacity be a public
official subect to the provisions of the Ethics Act, Based upon the submitted facts,
there woull be an inherent conflict that would preclude you from simultaneously serving
as the Treasurer of the Authority and the Sewage Collector for the Authority,
Consequently, Section 11 03(a) of the Ethics Act would prohibit you from simultaneously
serving as the Treasurer of t e Authority where you are already serving as the Sewage
Collector for the Authority. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act,
Pursuant to Section 11 07(l 1) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the fun
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writin and must be actually
received at the Commission within thirty (31Y) days of the date ot this
Advice "pursuant to 51 Pa. Code § 112(h). The. appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-7870806). Failure to
MI or an, 19-524
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Page 5
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
- Robin1/Hitt'ie�,-
Chief Counsel