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HomeMy WebLinkAbout19-550 SnyderPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 1 T 1 A [" Mel "01UNI :4 December 13, 2019 To the Requester: The Honorable Dennis, Snyder Mayor of Cressona Borough Dear Mayor Snyder: FACSIMILE: 717-787-0806 WFBSITE: wwwothics,ma This responds to your letter dated November 7, 2019 (postmarked November 8, 2019, received November 12, 2019), by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 P­577S. § 1101 et s@ pro q., would impose hibitions or restrictions upon an individual serving as a borough mayor with regard to receiving compensation for assisting with plowin�esnow in the borough on an as -needed basis either as a borough employee or in a private capacity. Facts: You request an advisory from the Commission based upon submitted what may be fairly summarized as follows. In the summer of 2019, you were appointed as Mayor of Cressona Borough ("Borough"), Schuylkill County, Pennsylvania, after the previous Borough Mayor resigned from office and relocated to another state. On November 5, 2019, you were elected as Borough Mayor, You state that the Borough has a population of 1,618. In nor years, you assisted with plowing snow in the Borough when the Borough was shorthanded. You were recently paid at the rate of $15.00 per hour for assisting with plowing snow in the Borough, and you were considered to be a Borough employee for insurance purposes, The Borough currently has two people workingon the Borough road crew, and assistance with plowing snow might be needed if the Borough would receive an extreme amount of snow or a road crew worker would be on vacation or out sick. Based upon the above submitted facts,. you ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to receiving compensation for assisting with plowinq snow in the Borough on an as -needed basis while you are Borough Mayor. As it is unclear from your advisory request letter whether you would perform such snow plowing work as a Borough employee or in a private capacity, this Advice shall address both possibilities. Snyder 19-550 D-ecember 13, 2019 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of EsAct, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not en age in an independent investigation of the facts, nor does it speculate as to facts t have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory on affords a defense to the extent the requester has truthfully disclosed all of the material Izalcts. As Borough Mayor, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) Voting conflict. --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 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 bodywould be unable to take any action on a matter before 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 bodyof 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. 65 Pa.C.S. §§ 1103(a), 0). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: § 1102. 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 Snyder 19-550 Decem6er 13, 2019 Page 3 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. The term 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. "Do minimis economic impact." An economic consequence which has an insignificant effect. Subject to the statutory exclusions to the Ethics Act's definition of the term "'conflict" or "conflict of interest," 65 Pa-C.S. § 1102, a public official/public employee is prohibited 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 official1public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result, Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 11030) of the Ethics Act would require the public official/public 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. One of the exclusions to the statutory definition of "conflict" or "conflict of interest," referred to herein as the "de minimis exclusion," precludes a finding of conflict of interest as to an action having a de minimis (insignificant� economic impact. Thus, when a matter that would otherwise constitute a conflict of in erest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be imp-ffiimplicated. See, Kolb, Order 1322; mi Schweinsbgra,Order 900. The determination o whethere denimis exclusion appl ies in a given instance is fact specific and is made on a case -by -case basis. See, Seropian v. State Ethics Commission, 20 A.3d 534 (Pa. cmwitn. 2011). 'You are Fa—utioned that the economic impact of an individual's conduct may aggregate over time, rather than be limited to a particular increment of time such as a month or year. Confidential Opinion, 05-001; Corey, Opinion 13-006; Mann, Opinion 14-003. Section 11 03(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract --No public official or public employee or his spouse or child or any business in Which the person or Sn der 19-550 ecember 13, 2019 Page 4 his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public egloyee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). The term "contract" is defined in the Ethics Act as follows: § 1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pla.C.,S. § 1102. Section 1103(f) does no operate makecontractingh he ov ernmental it t r to w public body permissible where it is otherwise opse prohibited. Rather, whe e a official/public erwt r us sswhich i spouse 01 employee, his spouse or child, a business h h he h s use r child is !0 c I with �i ' vern mental associated, is otherwise appropriatelyontracti ng with the go contract body, or subcontracting with any person who has been awarded a con rac , ith the w governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an open and Olic process" be observed as to the contract with the governmental body. Section 1103(f) o the Ethics Act also provides that the public official/public employee rn may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. If Borough snow plo!6in work would be petformed on an as -needed basis as a BoroUgh eMp/oye : With regard to the question of simultaneous service, it is initiall noted that the General Assembly has the constitutional power to declare by law Zich offices are incompatible. Pa. Const. Art. 6, § 2. It is further noted that the Borough Code provides, in pertinent part, as follows: Snyder 19-550 December 13, 2019 Page 5 § 1104. Appointments and incompatible offices. (a) General rule. -- Unless there is incompatibility in fact, an 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 under the statute. (b) Prohibition. (1) Except as set forth in paragraph (2) no elected borough official of a borough wash a population of 3,000 or more may serve as an employee of that borough. ( 2) Paragraph (1) shall not apply to a borough rough official serving as an employee of that borough prior to the certification of the 2010 officia census or a subsequent latest official census which indicates an increase in the population of that borough to 3,000 or more. (c) Multiple offices. -- If there is no incompatibility in fact and subject to subsection (a) 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, secretary or treasurer. (h) Construction. -- Nothing contained in this section shall be construed to affect the eligibility, of a borough official to hold any other public office or receive compensation. 8 Pa.C.S. § 1104(a)-(c), (h), Based upon the submitted fact that the population of the Borough is 1,618, you are advised that there does not appear to be any statutorily -declared incompatibility that would preclude you from simultaneously serving as Borough Mayor and a Borough employee assisting with plowing snow on an as -needed basis. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual tinual state of conflict, such as where in , one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain Opinion 02-009), Where an inherent conflict would exist, it would appear e impo pear to b�sible, as a practical matter, for the public official/public employee o function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily -declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in Sn der, 19-550 eceMber 13, 2019 Page 6 more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In this case based upon the facts that have been submitted, there does not appear to be an inkerent conflict that would preclude you from simultaneously serving aspBorougasis. Conseuently, such simultaneous Mayor and a Borough employee assisting with plowing snow on an as - needed service —and your receipt of compensation for assisting with plowing snow as a Borough employee —would be permitted within the parameters of Sections 1103(a) and 11030) of the Ethics Act. if Borough snow plowing work would be performed on an as -needed basis in a rivate capacit It is administratively noted that Section 1404 of the Borough Code provides: "Elected and appointed borough officials and borough employees are restricted from an interest in borough contracts and purchases to the extent provided in 65 Pa.C.S. Ch. 11 (relating to ethics standards and financial disclosure)." 8 Pa.C.S. § 1404. An agreement or arrangement whereby you would perform snow plowing work for the Borough on an as -needed basis in a private capacity would constitute a `"contract'" as that term is defined in the Ethics Act. Section 11 03(a) of the Ethics Act generally would prohibit you from taking it upon yourself to perform snow plowing work for the Borough on an as -needed basis in a private capacity. This is because, from a legal perspective, you would be usithe authority of your public position as Borough Mayor fco award Borough contracts)to yourself perform such work in a private capacity. However, Section 11 03(a) of the Ethics Act would not prohibit you from receiving compensation for performing snow plowing work for the Borough on an as -needed basis in a private capacity if: (1) You would not use the authority of your position as Borough Mayor to obtain sucH-woWpay; or (2) the amount of compensation you would receive for performing such work would bedeminimis, In each instance of a conflict of interest, you would be required to abstain from participation, which would include votingunless one of the statutoryexceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. The restrictions and requirements of Section 11 03(f) of the Ethics Act would have to be observed as to any contract between you and the Borough that would be valued at $500 or more. (See, Kistler v. State Ethics Commission, 610 Pa. 516, 22 X3d 223 (2011), regarding tfFe-ir6quirements for an "open and public process.") Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) in the summer of 2019, you were appointed as Mayor of Cressona Borough ("Borough' Schuylkill County, Pennsylvania, after the previous Boroqh Mayor resigned ("Borough' and relocated to another state; (2) on November 5, 201 , you were elected as Borough. Mayor; (3) the Borough has a population of 1 618, (4 in prior years you assisted with plowing snow in the Borough when the Borough was 2rt anded; (5) you were recently paid at the rate Snyder 19-550 December 13, 2019 Page 7 of $15.00 per hour for assisting with plowing snow in the Borough, and you were considered to be a Borough employee for insurance purposes; and (6) theBorough currently has two people workingon the Borough road crew, and assistance with plowing snow might be needed if Borough would receive an extreme amount of snow or a road crew worker would be on vacation or out sick, you are advised as follows. As Borough Mayor, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq. If Borough snow plowing work would be performed on an as -needed basis as a Boroucth emplove : Based upon the submitted fact that the population of the Borough is 1 618, you are advised that there does not appear to be any statutorily -declared incompatibility that would preclude you from simultaneously serving as Borough Mayor and a Borough employee assistingwith lowing snow on an as -needed basis. You are further advised that based upon e faX that have been submitted, there does not appear to be an inherent conflict that would preclude you from simultaneously serving as Borough Mayor and a Borough employee assisting with plowing snow on an as -needed basis. Consequently, such simultaneous service --and your receipt of compensation for assisting with plowing snow as a Borou h employee would be permitted within the parameters of Sections 1103(a) and 1103 ') of the Ethics Act. If BoroWh snow plowing work would be performed on an as -needed basis in a private c?pacit An agreement or arrangement whereby you would perform snow plowing work for the Borough on an as -needed basis in a private capacity would constitute a "contract" as that term is defined in the Ethics Act. Section 1103(a) of the Ethics Act generally would prohibit you from taking it upon yourself to perform snow plowing work for the Borough on an as -needed basis in a private capacity. This is because, from a legal pers ective, you would be using the authority of your public position as Borough Mayor fco award Borough contracts) to yourself to perform such work in a private capacity. However, Section 1103(a) of the Ethics Act would not prohibit you from receiving compensation or performinglowing work for the Borough on an as -needed basis would not use the authority of your position as Borough snow plowing the y ; 2 e amount of compensation you would receive capacity R (1 you wou t f iv in a private capac May p to obtain such ch v rk pa for p or performing such u w 0 w , 0_r d m I imis. erf n ch work would bie e n In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act wouldbe applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. The restrictions and requirements of Section 11 03(f) of the Ethics Act would have to be observed as to any contract between you and the Borough that would be valued at $500 or more. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Sn der 19-550 ecember 13, 2019 Page 8 Pursuant to Section 11 07(l 1) of the Ethics Act, an 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, provided the requester 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 such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the fun Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actuall received at the Commission within thirty days of the date-W ffijs Advice 'pursuant to 51 Pa. Code § f3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806 Failure to file such an appeal at the Commission Within thirty (70.0) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel