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HomeMy WebLinkAbout91-519 AbrahamMr. John Abraham Huntingdon Township Municipal Authority Town House 11265 Center Highway North Huntingdon, PA 15642 Dear Mr. Abraham: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 28, 1991 91 -519 Re: Simultaneous Service, Municipal Authority Member, Municipal Authority Employee. This responds to your letter of January 15, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon you as a member of the board of a municipal authority from also serving as a compensated employee of the municipal authority, specifically its executive director. Facts: As a board member of the North Huntingdon Township Municipal Authority, you seek advice from the State Ethics Commission with regard to whether you may simultaneously be a compensated employee of the municipal authority, specifically its executive director. Discussion: Initially, it is noted that this advisory is prospective in nature and does not address the propriety of any past conduct or actions. Secondly, this advisory is issued based upon an interpretation of Act 9 of 1989 and likewise would not have application to any matters as to which Act 170 of 1978 would control. As a member of the board for the North Huntingdon Township Municipal Authority, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 402. As to whether the Ethics Act would restrict or prohibit you as a member of the board of the North Huntingdon Township Municipal Authority from also serving as a compensated employee Mr. John Abraham Page 2 (executive director) of the Authority, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the Public Official and Employee Ethics Law. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of the Municipality Authorities Act. If, however, another provision of law, such as the provisions of the Municipality Authorities Act, somehow impacts on the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then this Commission may be required to interpret such provisions of law. See Bialer, Opinion 85 -020; Accord, Confidential Opinion 91 -001 at 4. Section 3(a) of the Ethics Law 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: "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. Mr. John Abraham Page 3 In addition, Sections 3(b) and (c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or 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. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the enabling legislation of the governmental body in question must be reviewed. In the instant situation, the Municipality Authorities Act provides as follows: Every Authority is hereby granted, and shall have may exercise all powers necessary or convenient for carrying out of the aforesaid purposes, including without limiting the generality of the foregoing, following rights and powers: 53 P.S. S306B. provides: * * * (f) To make by -laws for its affairs. (g) To appoint officers, prescribe their duties and the management and regulation of agents, employes and servants, to to fix their compensation. The Municipality Authorities Act further B. Members shall hold office until their successors have been appointed, and may succeed themselves, and, except members of the boards of Authorities organized or created by a school district or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies and the but the Mr. John-Abraham Page 4 during the term for which the member receiving the same shall have been appointed.... C. A majority of the members shall constitute a quorum of the board for the purpose of organizing the Authority and conducting the business thereof and for all other purposes, and all action may be taken by vote of a majority of the members present, unless in any case the by -laws shall require a larger number. The board shall have full authority to manage the properties and business of the Authority and to prescribe, amend and repeal by -laws, rules and regulations governing the manner in which the business of the Authority may be conducted, and the powers granted to it may be exercised and embodied. The board shall fix and determine the number of officers, agents and employees of the Authority and their respective powers, duties and compensation and may appoint to such office or offices any member of the board with such powers, duties and compensation as the board may deem proper.... 53 P.S. §309 B, C. Thus, in Confidential Opinion 90 -012, affirming Confidential Advice 90 -527, the Commission reviewed the Municipality Authorities Act regarding simultaneous service of authority board members as officers, although the Ethics Law itself does not per se prohibit such simultaneous service Id. at 5 -6. The Commission determined that Section 309B of the Municipality Authorities Act requires that the compensation for members of an authority must be set by the governing body. The Commission stated: "This is a clear expression of intent that the Authority Board Members may not set their own compensation." Id. at 6. The Commission further reviewed Section 309C of the Municipality Authorities Act and determined that although the act does allow for a majority of the members of an authority to fix and determine the number of officers and their compensation in those offices, any "creation" of offices for the members of the board so that the board in effect would set compensation for themselves would contravene the Municipality Authorities Act and therefore Section 3(a) of the Ethics Law. Id. The Commission held that the action of "creating" such offices and setting the compensation would be clearly a use of authority of office to Mr. John Abraham Page 5 obtain a private pecuniary benefit for the members which is not provided and is impliedly prohibited by the Municipality Authorities Act. Id. In applying the provisions of the Ethics Law and the reasoning of the Commission in Confidential Opinion 90 -012, affirming Confidential Advice 90 -527, to the specific and narrow question posed in this case, your inquiry is whether you as a board member of the North Huntingdon Township Municipal Authority may simultaneously serve as its compensated employee rather than as an officer. As the Commission noted in Confidential Opinion 90 -012, at 6, Section 309E of the Municipality Authorities Act requires that the compensation for members of the Authority must be set by the governing body. If members of the board of the Authority use the authority of office to obtain a private pecuniary benefit for the members which is not provided and is impliedly prohibited by the Municipality Authorities Act, the receipt of such compensation would be in contravention of the Municipality Authorities Act and would be prohibited by Section 3(a) of the Ethics Law. A review of Section 309C of the Municipality Authorities Act does not reveal any authorization for board members serving as employees of the Authority. To the extent that a board member of the Authority simultaneously serving as a compensated employee of the Authority would violate the Municipality Authorities Act, then such would also be prohibited by Section 3(a) of the Ethics Law. The action of setting the compensation and /or creating the employment position would be clearly a use of authority of office to obtain a private pecuniary benefit for the member which is not provided and is impliedly prohibited by the Municipality Authorities Act, and thus the Ethics Law. Therefore, under the Ethics Law you may not simultaneously serve as a board member of the North Huntingdon Township Municipal Authority and as a compensated employee (Executive Director) of the Authority. = Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Conclusion: As .a member of the board for the North Huntingdon Township Municipal Authority you are a "public official" subject to the provisions of the Ethics Law. Under the Municipality Authorities Act, all compensation for members of the Authority must be set by the governing body. The receipt of any such compensation by a board member which contravenes the Municipality Authorities Act is also prohibited by Section 3(a) of the Ethics Law. The Municipality Authorities Act does not authorize a board member of the Authority to simultaneously serve as a compensated employee of the Authority and such would therefore be prohibited by Section 3(a) of the Ethics Law. The Ethics Law prohibits you Mr. John Abraham Page 6 such. from simultaneously serving as a board member of the North Huntingdon Township Municipal Authority and as a compensated employee (Executive Director) of the Authority. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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 Advice given. 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 S2.12. S)ncerely, Ow Vincent . Dopko, Chief Counsel