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HomeMy WebLinkAbout92-501Mr. R. Craig Rhoades, Chairman Housing Authority of the City of Shamokin 1 East Independence Street 92 -501 Shamokin, PA 17872 Re: Simultaneous Service, Chairman of Housing Authority and City Councilman. Dear Mr. Rhoades: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 3, 1992 This responds to your letter of November 8, 1991, 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 chairman of a housing authority of a third class city from also serving or being employed as a city councilman. Facts: As Chairman of the Shamokin Housing Authority, and having been elected a Councilman of the City of Shamokin with your term commencing January, 1992, you seek the advice of the State Ethics Commission regarding your simultaneous service in these two positions. You note that pursuant to the Pennsylvania Housing Authorities Law, 35 P.S. 51541, et seq., no more than two paid public officials may sit on the Housing Authority Board at any one time. 35 P.S. §1546. Assuming that you may remain on the Housing Board, you state that you will be the only member to also hold a paid public position. You further note that the Housing Authority receives no funding from the City so that you do not perceive any conflict of interest as to funding. The primary focus of your inquiry concerns the Third Class City Code which provides that a city councilman shall not be a "... member or employe of a municipality authority of which the city is a member. . ." 53 P.S. 536001. It is your belief that the Housing Authority is not a "municipality authority of which Mr. R. Craig Rhoades January 3, 1992 Page 2 the city is a member" within the meaning the Third Class City Code. In support of your position, you point out that the Housing Authority is considered an agency of the Commonwealth, 35 P.S. S1550, and that the law specifically provides that the Authority, ". . .shall in no way be deemed to be an instrumentality of such city or county, or engaged in the performance of a municipal function." 35 P.S. §1544(a). Based upon the above provisions of law, it is your stated opinion that you may lawfully remain a member of the Shamokin Housing Authority after assuming your office as Councilman of the City of Shamokin. Nevertheless, you request an advisory opinion from this Commission in this regard. Discussion: As Chairman of the Shamokin Housing 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. S402; 51 Pa. Code §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 of his immediate family or a business with Mr. R. Craig Rhoades January 3, 1992 Page 3 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. 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 anything of monetary value based upon the understanding that the vote, official action or judgment of the public official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of simultaneous service, it is initially noted that you are asking this Commission to interpret and possibly to reconcile certain provisions within the Third Class City Code and the Pennsylvania Housing Authorities Law, neither of which statutory enactments falls within this Commission's express statutory jurisdiction. It is true that under Section 3(a) of the Ethics Law quoted above, the Commission has determined that if a particular statutory enactment prohibits an official's receipt of a particular benefit, then that official's receipt of such a prohibited benefit, in and through the authority of office, would also be in contravention of the Ethics Law. Hoak /McCutcheon v. State Ethics Commission 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983). The Commission has been called upon, on various occasions, to determine whether a private pecuniary benefit is prohibited by law. Fletcher Opinion 89 -018. In order to determine whether a particular private pecuniary benefit is strictly prohibited by law, the provisions of the enabling legislation of the governmental body in question must be reviewed. However, in this case, it appears that a judicial interpretation and /or reconciliation of the provisions which you have cited may be required. A review of the relevant case law raises serious doubt as to whether there is any validity to your position. Housing authorities are not unique in their status as agencies of the Commonwealth as compared to some agencies which are instrumentalities of the municipalities which organize them. Indeed, the Supreme Court of Pennsylvania has consistently held Mr. R. Craig Rhoades January 3, 1992 Page 4 the same to be true of other municipal authorities. Commonwealth the Erie Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 882 (1971); See also, Williamstown Borough Authority v. Cooper, Pa. Super ,591 A. 2d 711 (1991); 102 Pa. Commw. Ct. 9, 517 A. 2d. 1002, (1986), alloc. granted, Pa. Commw. Ct. ,527 A. 2d. 548, dismissed, Pa. Commw. Ct. ,535 A. 2d 1052. Although housing authorities are for some purposes agencies of the state, there is precedent interpreting other statutes involving municipal or local authorities which suggests that they may be deemed to be local authorities. Clearfield Area Housing Corporation v. Hughes, 13 Pa. Commw. Ct. 96, 318 A. 2d. 754 (1974) (interpreting the now repealed Appellate Court Jurisdiction Act of 1970, 17 P.S. 5211.401 (a) (1). Based upon the above case law, it would appear that a court could reject your argument that 53 P.S. 536001, which prohibits a third class city councilman to simultaneously serve as any member or employee of a municipal authority of which the city is a member, does not include a housing authority merely because the housing authority is an agency of the state and is not an instrumentality of the municipality, or engaged in a performance of a municipal function. It seems quite possible that the same characteristics may apply to any municipal authority; if your reasoning were to be applied to all of the other municipal authorities, there would be none left to which Section 36001 would apply, rendering meaningless the statutory language of Section 36001 prohibiting simultaneous service with a municipal authority of which the city is member. In any event, this Advice may solely address the question of your simultaneous service within the narrow confines within the Ethic Law itself. 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 you as Chairman of the Shamokin Housing Authority were to serve both as a public official /employee in that capacity and as a Councilman of the City of Shamokin. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a councilman for a third class city. 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, you would not be serving entities with interests which are adverse to each other. Mr. R. Craig Rhoades January 3, 1992 Page 5 However, if a situation arises where you or the respective entities which you represent develop an adverse interest, then you must remove yourself from that particular matter and disclose the nature of your 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. 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. Specifically not addressed herein is the propriety of the proposed conduct under the Third Class City Code and /or the Pennsylvania Housing Authorities Law. It is strongly recommend that you seek the advice of legal counsel as to any incompatibility as to your proposed simultaneous serve within the parameters of the Third Class City Code and the Pennsylvania Housing Authorities Law. Conclusion: As the Chairman of the Shamokin Housing Authority, you are a "public 'official" subject to the provisions of the Ethics Law,_ As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Chairman of the Shamokin Housing Authority and Councilman of the City of Shamokin. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. It is strongly recommended that you seek the advice of legal counsel as to any incompatibility as to your proposed simultaneous service within the parameters of the Third Class City Code and the Pennsylvania Housing Authorities 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 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 Mr. R. Craig Rhoades January 3, 1992 Page 6 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. VJD /sak Very truly yours, Vincent J'! Dopko, Chief Counsel