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HomeMy WebLinkAbout90-597 ClarkMr. W. Bruce Clark Middletown Township Manager 27 N. Pennell Road P.O. Box 157 Lima, PA 19037 -0157 Dear Mr. Clark: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 27, 1990 90 -597 Re: Simultaneous Service, Township Finance Director and Member of the Board of Trustees of Pennsylvania Municipal Investment Program. This responds to your letter of August 22, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a township finance director from also serving or being employed as a member of the Board of Trustees of the Pennsylvania Municipal Investment Program. Facts: The Finance Director of Middletown Township, Celeste M. Dunion is currently serving as a non -paid member of the Board of Trustees of Pennsylvania Municipal Investment Program which is a trust program created to allow municipalities to pull investment funds as part of an on -going cash management program. The program is currently organizing both from a legal and financial stand point so that it can offer investment services to municipal governments and authorities. Ms. Dunion has attended several meetings involving the feasibility of establishing a program and has been invited to participate as a member of the initial board of trustees of the program. The Middletown Township Counsel has voted to give the necessary authorization for the use of township funds in this program. The amount of the township funds invested and the placement of those funds is part of the overall cash management program which is one of the areas of responsibility assigned to Ms. Dunion in her position as finance director. After the township solicitor expressed an opinion that a conflict could exist if Ms. Dunion as township finance director were to direct township funds to the program on which she sits as a member of the board, the solicitor made a recommendation to seek Mr. W. Bruce Clark Page 2 an advisory opinion from the Commission regarding this matter. Currently the township funds are invested in a number of different banking institutions and another pooled investment program available to local governments. Since participation in the Pennsylvania Municipal Investment Program would be an additional cash management option to the township, it is anticipated that the township would continue to diversify its investments between a number of different institutions and the Pennsylvania Municipal Investment Program depending upon the availability of funds and competitive rates. After submitting a photocopy of the draft of the Declaration of Trust and the Information statement together with a job description for the position of township finance director, you conclude by requesting an advisory opinion regarding Ms. Dunion's duties under the Ethics Law. Discussion: As a Finance Director for Middletown Township, Celeste M. Dunion is a "public employee" as that term is defined in the Ethics Law and hence she is subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. 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 Mr. W. Bruce Clark Page 5 that Ms. Dunion has no familial or business interests with the trust manager. 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 Finance Director for Middletown Township, Celeste M. Dunion is a "public employee" subject to the provisions of the Ethics Law. As a public employee, she may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Finance Director and member of the board of trustees of the Pennsylvania Municipal Investment Program. She would not have a conflict as to the Pennsylvania Municipal Investment Program subject to the qualifications noted above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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 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 §2.12. Vincent J. Chief Counsel Z1.4z