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HomeMy WebLinkAbout90-578 ConfidentialSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 8, 1990 90 -578 Re: Simultaneous Service, Borough Mayor and Borough Water Works Charges Collector. This responds to your letter of June 21, 1990, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a borough mayor from also serving or being employed as a borough water works charges collector. Facts: As the solicitor for Borough A, you requested an advisory opinion regarding the borough and its mayor. Borough A is a small financially distressed municipality which owns the Water Works B which is not required to be subject to PUC regulation. The borough bills and collects charges for providing water to its residents, which has been done by C, a borough resident who owns a small shop wherein she sells cards, nick - nacks, and lottery tickets. In addition, C is a Collector for D regarding electric and gas bills. She receives $150.00 for billing and collection of the borough water charges; however, you are unaware as to her compensation regarding the other utility billing. In the spring of 1989, Mayor E resigned, and C was dully appointed Mayor and was subsequently elected to that position at the following municipal election. Although representatives of DCA have indicated that it may be improper for C to receive a fee for billing and collection of water charges, you state that the Borough Code is unclear on this matter. After noting that Mayor C, as well as members of council, do not receive compensation for their duties because the borough is financially strapped, you express your view that the payment for services rendered to the municipal water works should not be a factor "because the borough -Page 2 is the water works and vice versa ". After advising that C is willing to follow the recommendation of this Commission, you inquire as to whether a member of her family can do the work and be compensated by the borough in lieu of herself. Discussion: As a Mayor for Borough A, C is a "public official" as that term is defined in the Ethics Law and hence she is subject to the provisions of the Ethics Law. 65 P.S. Section 402; 51 Pa. Code Section 1.1. Section 3(a) of the Ethics Act provides: Section 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 under the Ethics Law: 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 "Immediate family." A parent, spouse, child, brother or sister. 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 official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if C were to serve both as a public official/ employee and as borough water works charge collector. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as borough water works charge collector. The main prohibition under the 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. Smith, Opinion 89 -010. In the situation outlined above, C would not be serving entities with interests which are adverse to each other. However, if a situation arises where C or the respective entities she represents develop an adverse interest, then she must remove herself from that particular matter and disclose the nature of her interest in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Although C would not be precluded from simultaneously service as borough mayor and borough water works charge collector under the Ethics Law, she should be aware that Act 18 of 1990 has recently amended Section 1104 of the Borough Code in part as follows: 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. No elected borough official of a borough with a population of 3,000 or more may serve as an employee of that borough... Page 4 Since serious questions exist under the Borough Code as to whether she may simultaneously serve in those two positions assuming that the population of borough is 3,000 or more, it is suggested that she contact her private attorney /solicitor and seek his advice on the propriety of such service under the Borough Code. On the issue of whether she could have a member of her family do the work and receive compensation from the Borough, Section 3(a) would prohibit such action because she would be using the authority of office to obtain a private pecuniary benefit for a member of her family, assuming the individual is a member of her "immediate family" as that term is defined above. Lastly, 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 Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Mayor for Borough A, C is a "public official" subject to the provisions of the Ethics Law. As a public official /employee, she may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of borough mayor and borough water works charges collector. Section 3(a) would prohibit the Mayor from using the authority of office to have a member of her immediate family perform services and receive compensation from the Borough. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. However, a serious question exists as to whether she may simultaneously serve in these positions under the Borough Code, and it is suggested that she seek advice from private counsel/ solicitor in that regard. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. 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 Advicg 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 Page 5 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 52.12. incerely, Vincent Dopko, Chief Counsel