HomeMy WebLinkAbout93-533 FritschDear Mr. Fritsch:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 30, 1993
Dennis G. Fritsch, Esquire 93-533
Phillips, Faldowski & McCloskey
29 East Beau Street
Washington, PA 15301
Re: Simultaneous Service, Sewage Authority Member and Borough
Council Member.
This responds to your letter of February 24, 1993, 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 sewage authority member from
also serving as a borough council member.
Facts: As Solicitor for the McDonald Sewage Authority, you request
an advisory on behalf of one of the Board Members who wishes to
retain his position as an appointed Member of the McDonald Sewage
Authority and also seeks to hold office as a Member of Borough
Council. You request an advisory from the State Ethics Commission
as to whether these two offices are compatible as they appear to
you to be under 53 P.S. 546104.
Discussion: As a Member of the McDonald Sewage Authority, the
individual on whose behalf you inquire 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. §402; 51 Pa. Code 51.1.
Should this individual be elected to the office of Borough Council
Member, he or she would be a public official subject to the Ethics
Law in that position as well.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
Dennis G. Fritsch, Esquire
March 30, 1993
Page 2
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
any thing of monetary value and no public official /employee shall
solicit or accept any thing of monetary value based upon the
understanding that the vote, official action, or judgment of the
public official /employee would be influenced thereby.
Before applying the above provisions of the Ethics Law to the
question which you have submitted, it is initially noted that this
Advice expressly assumes that the McDonald Sewage Authority is a
properly formed authority under the Municipality Authorities Act
and therefore is a separate governmental body from the Borough.
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 merely from simultaneous service as a public
official in both capacities as a Member of the McDonald Sewage
Dennis G. Fritsch, Esquire
March 30, 1993
Page 3
Authority and as a Borough Council Member. Basically, the Ethics
Law does not state that it is inherently incompatible for a public
official /employee to simultaneously serve in the said capacities.
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,
the individual on whose behalf you inquire would not be serving
entities with interests which are inherently adverse to each other.
This conclusion, however, is conditioned upon the assumption
that the McDonald Sewage Authority is a separate governmental body
from the Borough. Were the Authority to be part of the Borough
rather than a separate governmental body, the proposed simultaneous
service would constitute holding two Borough positions and would
require further analysis in light of 53 P.S. §46104.
Turning to the question of conflict of interest, pursuant to
Section 3(a) of the Ethics Law, 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 official/
public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is
associated. Should a situation arise where the use of authority of
public office /employment or confidential information received by
holding the above public positions could result in a prohibited
private pecuniary benefit, a conflict of interest would arise.
Such a situation could include acting as a Borough Council Member
to reappoint oneself to serve as a compensated municipal authority
member. In each instance of a conflict of interest, the individual
on whose behalf you inquire would be required to fully abstain and
to publicly announce and disclose the abstention and the reasons
for same in a written memorandum filed with the 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 Law 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 or the
Municipality Authorities Act.
Conclusion: As a Member of the McDonald Sewage Authority, the
individual on whose behalf you inquire is a "public official"
subject to the provisions of the Ethics Law. Should this
individual be elected to the office of Borough Council Member, he
or she would be a public official subject to the Ethics Law in that
Dennis G. Fritsch, Esquire
March 30, 1993
Page 4
position as well. As a public official, the individual on whose
behalf you inquire may, consistent with Section 3(a) of the Ethics
Law, simultaneously serve in the positions of a Member of the
McDonald Sewage Authority and a Borough Council Member, subject to
the restrictions, conditions and qualifications set forth above.
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.
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 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 §2.12.
truly yours,
Vincent . Dopko,
Chief Co nsel