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HomeMy WebLinkAbout90-575 HooverDear Mr. Hoover: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 26, 1990 Mr. Robert G. Hoover 90 -575 Municipal Authority of the Township of Morris P.O. Box 145 Morrisdale, PA 16858 Re: Conflict, Public Official /Employee, Simultaneous Service, Municipal Authority Member, Municipal Authority Employee, This responds to your letters of May 10 and June 13, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a municipal authority board member from also serving or being employed by the authority. Facts: You are the solicitor for the Morris Township Municipal Authority which has its primary purpose of providing water to township residents. The operations and revenues of the authority are modest and on occasion, board members have performed maintenance or repair labor themselves. The board has inquired as to wether it may compensate a member for labor or services performed. As with many small authorities, you note that the members of the board receive no salaries notwithstanding section 309 of the Municipal Authorities Act of 1945, which permits establishment of salaries for board members by the governing body. You state that you have found no authority prohibiting the board from compensating one or several of its members for labor performed. After quoting Section 309(c) of the Municipal Authorities Act in part, you inquire as to whether the term "and office or offices" encompass officers, agents and employees. Irrespective of the opinion which you will issue under the Municipal Authorities Act of 1945, you seek guidance from the Commission as to whether such compensation would be a restricted activity or conflict under the Ethics Law, although it is your contention that such would be permissible. You conclude by Page 2 requesting an advisory as to wether a municipal authority board may under Ethics Law compensate one or several of its members for labor or services performed by the member in lieu of such activity being performed by an employee or contractor. Discussion: As board members for Morris Township Municipal Authority, the individuals are public officials as that term is defined under the Ethics Law, and hence they are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Sggtion 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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 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. "Conflict" or "conflict of interest" 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 or 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. Page 3 In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. The issue of simultaneous service as a municipal authority board member and municipal authority officer, a question materially similar to the one you posed, was addressed in confidential Advice 90 -527. In that case, it was determined that authority board members could also serve as authority board officers provided that such offices were in fact appropriate and not an attempt to circumvent the requirements that the governing authority fix the compensation of the authority board members: In applying the above provisions of the Ethics Law to the question of simultaneous service as an authority board member and officer, there is no per se prohibition to such service. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve in a position of employment. The main prohibition under the State Ethics Law 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. Therefore, the positions of authority board member and officer are not prohibited under Section 3(a) of the Ethics Act, provided that the available offices with the Authority would be those which are bona fide in nature. However, the creation of non - legitimate offices for the purpose of providing members of the Authority with compensated positions would be precluded by Section 3(a) of the Ethics Law because in that instance the authority members would be using the authority of their office, through creating these positions and voting for appointments to these positions, to create a private pecuniary benefit for themselves. It is important to note that the Municipal Authorities Act that the compensation of authority members be fixed by the governing body that created the authority. Thus, if the board members who can fix the compensation for board officers and employees use their office to "create" positions in order to evade the above requirements, then such would be in contravention of the State Ethics Law. The criteria necessary to determine whether the offices are legitimate would be to consider the time at which the "offices" were created, the number of "offices" relative to the number of authority board members, the duties that are Page 4 performed in these offices, the underlying purpose for creating the "offices ", the salaries for these "offices" relative to the compensation set by the governing body and any other considerations which bear upon the legitimacy of such "offices ". Confidential Advice 90 -527 at 4, 5. Confidential Advice 90 -527 was appealed to the full commission which affirmed at Confidential Opinion 90 -012. In the instant matter, the authority board members would not be precluded from serving as authority employees based upon the express assumption that the conditions outlined in the above - cited advice do not have application. Further, an authority board member could not participate or vote on his appointment to a position of employment with the authority under Section 3(a) of the Ethics Law quoted above. In such circumstances, Section 3(j) of the Ethics Act would require him to publicly abstain and announce the reasons of his abstention as well as file a written memorandum to that effect with the secretary of recording the minutes. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Municipality Authorities Act. Conclusion: As board members for Morris Township Municipal Authority, the individuals are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit an authority board member from serving in a legitimate position of employment with the authority, but the member could not participate or vote as to his own appointment and the disclosure requirements of Section 3(j) of the Ethics Act, to the extent applicable, must be satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as Page 5 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 1 2.12. erely, Vincent J. ko Vin p , Chief Counsel