HomeMy WebLinkAbout19-533 KreiserPHONE: 717-783-1610
TOLL FREE: 1-800-932-0936
To the Requester:
Dear IMir. Kreiser:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
July 22, 2019
FACSIMILE: 7,17-787-0806
WEBSITE; www,ethic%pam-y
19-533
This responds to your letter dated June 19, 2019 (postmarked June 28, 2019,
received July 1, 2019), by which you requested an advisory from the Pennsylvania
State Ethics Commission ( Commission").
Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
P577-S. § 1101 et sue., would impose prohibitions or restrictions upon a borough
w-li council member h—regard to simultaneously serving as a backup borough employee
assisting with mowing, weed whacking, and flagging work.
Facts: You are a Member of Council for Lykens Borough ("Borough"). You state
that t e Borough has a population of 1,779,
The narrow question that you have posed is whether the Ethics Act would permit
YOU to Simultaneously serve as a Borough Council Member and a backup Borough
employee assisting with mowing, weed whacking, and flagging work.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1 107(l 1) of
the Ethic Act, 65 Pa.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 en age in an
independent investigation of the facts, nor does it speculate as to facts tha 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), (11). 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 this Advice is limited to addressing the narrow
question posed.
As a Borough Council Member, you are a public official subject to the provisions
of the Ethics Act.
Sections 11 03(a) and 11030) of the Ethics Act provide;
Krelser, 19-533
July 22: 2019
Page 2
§ 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 bod 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
other legally
of this
section makes the majority or a 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
od of a political subdivision, where one member has
abstained from voting 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.
The following terms pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the priv e
Fecuniary benefit of himself, a member of his immediate
amily 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 industry, occupation or
other group which includes the public official 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,
Kreiser 19-533
July 22: 21019
Page 3
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 employee is
prohibited from using the authority of public office/employment or confidential
information received b 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
authorityof 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 presented, 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.
It is further noted that the Borough Code provides, in pertinent part, as follows:
§ 1104. Appointments and incompatible offices.
(a) General rule.
Unless there is incompatibility in fact, an 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 under
the statute.
(b) Prohibition.
(1) Except as set forth in paragraph (2), no
elected borough official of a borough with a
population of 3,000 or more may serve as an
employee of that borough.
(2) Paragraph (1) shall not apply to a
borough official serving as an employee of that
borough prior to the certification of 2010
official census or a subsequent latest official
census which indicates an increase in the
population of that borough to 3,000 or more.
(c) Multiple offices. --
If there is no incompatibility in fact and subject to
subsection (a) 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., secretary or treasurer.
Kreiser, 19-533
July 22� 2019
Page 4
(h) Construction. --
Nothing contained in this section shall be construed to
affect the eligibilityof a borough official to hold any other
public office or receive compensation.
8 Pa.C.S. § 1104(a)-(c), (h).
Based upon the submitted fact that the population of the Borough is 1 779, you
are advised that there does not appear to be any statutorily -declared incompatibility hat
would preclude you from simultaneously serving as a Borou Council Member and a
backup Borough employee assisting with mowing, weed whacking, and flagging work.
Turning to the uestion of conflict of interest, where simultaneous service would
place the public officia�,Ipublic employee in a continual state of conflict, such as where in
one position he would be accounting to himself in another position on a continual basis,
there would be an inherent conflict. (age , nion 02-009), Where an inherent
, McCain
conflict would exist, it would appear to be impo;.tle, 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,
Absent a statutorily -declared incompatibilit or an inherent conflict under Section
1103(a), the Ethics Act would not preclude an individual from simultaneously servingin
more than one position. However, in each instance of a conflict of interest, the individual
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 this case, based upon the facts that have been submitted, there does not
appear to be an inherent conflict that would preclude you from simultaneously serving
as a, Borough Council Member and a backup Borough employee assisting with mowing,
weed whacking, and flagging work. Consequent] such simultaneous service would be
permitted within the parameters of Sections 11034) and 11030) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As a Member of Council for L�kens Borough ("Borough"),you are a
public official subect to the provisions of the Public Official and Employee&hics Act
("Ethics Act"), i Pa.C.S. § 1101 et sect. Based upon the submitted fact that the
Population of the Borough is 1,779, you are advised that subject to the restrictions,
conditions, and qualifications set forth above, may, consistent with Section 11 03(a)
of the Ethics Act, simultaneously serve as a Vourough Council Member and a backup
Borough employee assisting with mowing, weed whacking, and flagging work. Lastly,
the propriety of the propose conduct has only been addressed under he Ethics Act.
Pursuant to Section 1107(11) 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 reuester has disclosed
trUthfully,all the material facts and committed the acts complainedof in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Kreiser, 19-533
July, 2019
Page 5
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
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 writingg and must be actuallll r
received at the Commission within thirty (30) days of the date ofthis
Advicepursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by handdelivery, United States mail,
delivery service, or by FAX transmission (717-787-080+6). Failure to
file such an appeal at the Commission within thirty (, 0) days may
result in the dismissal of the appeal.
Sincerely,
111��tk-�� qt-.
l� Y l '
Robin M. Hittie
Chief Counsel