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HomeMy WebLinkAbout92-513Mr. David A. Flood, Esq. Lock Drawer 599 139 W. High Street Bellefonte, PA 16823 Dear Mr. Flood: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 22, 1992 92 -513 Re: Simultaneous Service; Borough Water Authority Member, School Director and County Weights and Measures Officer. This responds to your letters of November 19, 1991 and December 9, 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 borough water authority member from also serving or being employed as a school director or as a county weights and measures officer. Facts: As Special Counsel to the Milesburg Borough Council and the Milesburg Water Authority, both of which are located at Milesburg, Centre County, Pennsylvania, you seek the advice of the State Ethics Commission. Milesburg Borough is the appointing and supervising municipality of the Milesburg Water Authority. You note that the Authority was created under the Municipality Authorities Act of 1945. Your inquiry relates to a possible conflict of interest and /or incompatibility of various positions held by a particular Member of the Milesburg Water Authority, Mr. Ron Crust. While serving as a Water Authority Member, Mr. Crust will take an elected seat as a School Director for the Bald Eagle Area School Board as of January 1, 1992. Mr. Crust also serves the County of Centre as a Weights and Measures Officer appointed by the Centre County Commissioners, and you indicate that there is some speculation that this position might be incompatible with the office of School Director. You state that a review of the applicable law and the Pennsylvania Constitution indicates that the above offices are Mr. David A. Flood January 22, 1992 Page 2 not incompatible in a strictly legal sense. However, you note that in the course of time, it is expected that Mr. Crust would have to rule on matters such as water supply contracts between the School Board and the Authority, the possible acquisition of water sources by the Authority which are owned by the School District, and other matters of like import. You have submitted a letter dated November 26, 1991 addressed to you from Ms. Paula Hall, Milesburg Borough Secretary /Treasurer, and its enclosure which consists of one page from what you have indicated to be the October, 1991 minutes for the Borough. The minutes contain a highlighted portion pertaining to a motion made concerning your contacting this Commission regarding Mr. Crust serving on the Water Authority and on the Bald Eagle Area School Board. The minutes also reference Mr. Crust's serving as Borough Auditor with said service to terminate the end of December, 1991. The said letter and copy from the minutes are incorporated herein by reference. Based upon all of the above, you request an advisory from this Commission. Discussion: As a Member of the Milesburg Water Authority, Mr. Ron Crust is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. 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 Mr. David A. Flood January 22, 1992 Page 3 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, offical action, or judgement of the public official /employee would be influenced thereby. In addressing your specific inquiries, it is initially noted that this Advice does not address the issue of whether there would be any incompatibility as to Mr. Crust's status as a Borough Auditor because the submitted facts indicate the termination of his service in that position as of December 1991, and because his simultaneous service while in that capacity would constitute past action which would be beyond the scope of an advisory. It is further noted that this Advice may only address any incompatibilities as to Mr. Crust's position as a Water Authority Member. Your standing to submit a request for advice is specifically based upon the Borough Council's appointment of Mr. Crust to the Milesburg Water Authority. You would not have standing to inquire as to whether there would be any Mr. David A. Flood January 22, 1992 Page 4 incompatibility between his positions as Centre County Weights and Measures Officer and School Director. In applying the above provisions of the Ethics Law to the questions of Mr. Crust's simultaneous service as a Milesburg Water Authority Member /School Director and as a Milesburg Water Authority Member /Centre County Weights and Measures Officer, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if Mr. Crust were to serve as a public official /employee as a Water Authority ,Member while also serving as a School Director or as the Centre County Weights and Measures Officer. Basically, the Ethics Law does not state that it is inherently incompatible for a water authority member as a public official to serve or be employed as a school director or as a county weights and measures officer. 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, Mr. Crust would not be serving entities with interests which are adverse to each other. However, if a situation arises where Mr. Crust or the respective entities he represents develop an adverse interest, then Mr. Crust must remove himself from that particular matter and publicly disclose his abstention and the reasons for same, both orally and in a written memorandum filed with the secretary who keeps the minutes if his abstention is as a public official, or in a written memorandum filed with his supervisor if he is removing himself from a matter as a public employee. 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 Law. Specifically not addressed herein is the applicability of the Borough Code, the School Code, and /or the Weights and Measures Act of 1965. Conclusion: As a Member of the Milesburg Water Authority, Mr. Ron Crust is a "public official" subject to the provisions of the Ethics Law. As a public official /employee, Mr. Ron Crust may, consistent with Section 3(a) of the Ethics Law, simultaneously Mr. David A. Flood January 22, 1992 Page 5 serve in the positions of Milesburg Water Authority Member /School Director or Milesburg Water Authority Member /Centre County Weights and Measures Officer. Questions as to any incompatibility between Mr. Crust's positions as a School Director and Centre County Weights and Measures Officer have not been addressed in that you do not have standing to request advice as to those capacities. 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. Sincerely, Vincent J. Dopko Chief Counsel al%