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HomeMy WebLinkAbout92-506Dear Mr. Yurchak: STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 14, 1992 Stephen Yurchak 92 -506 322 West Railroad Street Nesquehoning, PA 18240 Re: Simultaneous Service, Borough Authority Member and Borough Council Member. This responds to your letter of November 18, 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 you as a Member of the Nesquehoning Borough Authority from also serving as a Nesquehoning Borough Council Member. Facts: You initially note a prior telephone conversation with this Commission on November 15, 1991. You state that you are currently serving as a Member of the Nesquehoning Borough Authority, and you have just been elected to the Nesquehoning Borough Council effective January, 1992. You ask whether there would be a conflict were you to serve on both the Authority and Council simultaneously. You note that the estimated population of Nesquehoning Borough is thirty -three hundred (3300). You state that you have contacted your attorney and the District Attorney's Office in Carbon County, and that these individuals feel that there would be no conflict. Nevertheless, you request the advice of this Commission in this matter. Discussion: As a Member of the Nesquehoning Borough 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; 51 Pa. Code §1.1. Furthermore, upon taking office as a Member of the Nesquehoning Borough Council, you will also in that capacity be a "public official" as defined in the Ethics Law and subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code S1.1. January 14, 1992 Stephen Yurchak Page 2 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 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 judgement of the public official /employee would be influenced thereby. January 14, 1992 Stephen Yurchak Page 3 It is initially noted that the Borough Code must be reviewed to the extent that it impacts upon the Ethics Law regarding the issue of whether in simultaneously serving in the above capacities, you would be using the authority of office to obtain a private pecuniary benefit for yourself. gala, Confidential Opinion, 91 -001. In this regard, the Commission has previously held that if a pecuniary benefit is prohibited by law, then that benefit received through the use of authority of office would be a private pecuniary benefit for the public official/ employee contrary to Section 3(a). Id. In this case, the following provision of the Borough Code must be reviewed: S 46104. Appointments; incompatible offices 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 employe of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending' the meeting at which the appointment is made, January 14, 1992 Stephen Yurchak Page 4 unless a different vote is required by statute. 53 P.S. 546104. The above provision of the Borough Code would appear to permit you to hold both of your above positions simultaneously, but because one of your positions would be as a Borough Council Member, you could not receive compensation for your other position as a Borough Authority Member. 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 were to serve as a public official/ employee both in your capacity as a member of the Nesquehoning Borough Authority and as a non - compensated member of the Nesquehoning Borough Council. Basically, the Ethics Law does not state that it is inherently incompatible for a borough council member to serve as a non - compensated member of a borough authority. 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. However, if a situation arises where you or the respective entities 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. Thus, the Ethics Law would not prohibit or restrict you from simultaneously serving as a Member of the Nesquehoning Borough Council and as a Member of the Nesquehoning Borough Authority, but you could not be compensated for your service as an Authority Member because such compensation would be prohibited by law, 53 P.S. 546104, and any receipt of compensation as a Borough Authority Member while you simultaneously serve as a Borough Council Member would constitute the use of the authority of office to obtain a private pecuniary benefit for yourself as prohibited by Section 3(a) of the Ethics Law. 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 January 14, 1992 Stephen Yurchak Page 5 do not involve an interpretation of the Ethics Act. Section 1104 of the Borough Code, 53 P.S. 546104, has been reviewed to the extent that it impacts upon the Ethics Law regarding the issues addressed herein. Conclusion: As a Member of the Nesquehoning Borough Authority, you are a "public official" subject to the provisions of the Ethics Law. Upon entering office as a Member of the Nesquehoning Borough Council, you will in that capacity also be 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 Borough Authority Member and Borough Council Member. However, you may not receive compensation for your service as a Member of the Nesquehoning Borough Authority. Lastly, the propriety of the proposed course of 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 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 52.12. Very truly yours, Vincent J. Dopko, Chief Counsel