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HomeMy WebLinkAbout93-506 MoserMr. Dennis Moser 434 White Street Weissport, PA 18235 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 14, 1993 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. 93 -506 Re: Simultaneous Service, Borough Council Member and Part -time Borough Employee. Dear Mr. Moser: This responds to your letter received December 10, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough council member from also serving or being employed as a part -time employee of the borough which has a population of under 3,000. Facts: You state that you are interested in filling a vacant Borough Council seat in the Borough of Weissport, Pennsylvania, which has a population of about 465 people. You also work part - time as a maintenance worker in the Borough of Weissport averaging about ten to twelve hours per week. You request an advisory from the State Ethics Commission regarding whether you may simultaneously work for the Borough of Weissport and hold an office, or whether it would be a conflict of interest. Discussion: Upon becoming a Borough Council Member for the Borough of Weissport, Pennsylvania, you would become a public official as that term is defined under the Ethics Law, and hence you would be subject to the provisions of that law. Mr. Dennis Moser January 14, 1993 Page 2 The following terms are defined in the Ethics Law as follows: 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. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his Mr. Dennis Moser January 14, 1993 Page 3 official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. This Commission may only address questions regarding the duties and responsibilities of public officials /public employees within the purview of the Public Official and Employee Ethics Law. If, however, certain provisions of other laws impact upon the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then the Commission may be required to review such provisions of law. Confidential Opinion 90 -012, at 5 (Citing Bigler, Opinion 85 -020) (Reviewing Municipality Authorities Act). Accord, Confidential Opinion 91 -001 at 4 (Reviewing Second Class Township Code). 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. Cmwlth. 529, 466 A.2d 283 (1983). In this case, the relevant statutory enactment to be reviewed Mr. Dennis Moser January 14, 1993 Page 4 is Section 1104 of the Borough Code, which provides in pertinent part: 546104. 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, unless a different vote is required by statute. 53 P.S. 546104 (Emphasis added). In considering the above provision of law, the focus of an application of the Ethics Law would be to determine whether your receiving compensation as a part -time employee of the Borough while simultaneously serving as a Member of the Borough Council would be the receipt of a prohibited benefit, in and through the authority of office, such that it would be in contravention of the Ethics Law. The relevant portion of the above provision prohibits an elected borough official of a borough with a population of 3,000 or more from serving as an employee of that borough. Although this Commission would not have the express statutory authority to interpret this provision of the Borough Code, it seems clear, based Mr. Dennis Moser January 14, 1993 Page 5 upon your representation that the population of the Borough of Weissport is about 465, and therefore less than 3,000, that your receipt of compensation as a part -time Borough employee while simultaneously serving as a Member of the Borough Council would not be the receipt of a prohibited benefit in and through the authority of office for purposes of applying the Ethics Law to these circumstances. 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 simultaneously serve as a public official as a Member of the Borough Council while also serving as a part -time Borough employee. Basically, the Ethics Law does not state that it is inherently incompatible for a borough council member to serve or be employed as a part -time employee of the borough. 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 inherently adverse. Smith, Opinion 89 -010. In the situation outlined above, you would not be serving entities with interests which are inherently adverse to each other. Turning to the question of conflict of interest, however, there may be instances where a conflict of interest would arise for you. Section 3(a) of the Ethics Law prohibits a public official/ public employee from using the authority of public office/ employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. Thus, it is clear that you would have a conflict of interest as to any matter before you in your capacity as a public official involving your own hiring, continued employment, compensation as a part -time borough employee, benefits, and the like. In each instance of a conflict of interest, you would be required to fully abstain and to publicly announce and disclose your abstention and the reasons for same, both orally and by filing 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. Section 1104 of the Borough Code has been reviewed to the extent that it impacts upon an application of the Ethics Law to the circumstances which you have presented. Conclusion: Upon becoming a Member of the Borough Council for the Borough of Weissport, Pennsylvania, you would become a "public official" subject to the provisions of the Ethics Law. Subject to such. Mr. Dennis Moser January 14, 1993 Page 6 the restrictions and qualifications noted above, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Member of Borough Council and part -time Borough employee for the Borough of Weissport, which has a population of under 3,000. 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. 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. Sncerely, „ � 1. Vincent J. Dopko Chief Counsel