HomeMy WebLinkAbout93-538 KingDear Ms. King:
This responds to your letters of March 8, 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 an administrative secretary/
manager for a township sewer authority from also serving or being
employed as a township supervisor.
Facts: As an Administrative Secretary /Manager for the Summit
Township Sewer Authority, you seek an advisory from the State
Ethics Commission as to whether you, an employee of an autonomous,
operating Authority, may be a candidate for nomination to the
office of Summit Township Supervisor.
You further ask whether you may remain in your position as the
Administrative Secretary /Manager at the Summit Township Sewer
Authority on a full -time salaried basis while serving as a "part -
time" Summit Township Supervisor.
You state that you have discussed this issue at length with
your Board and Authority Solicitor, James F. Toohey, Esquire. You
state that you agree with Mr. Toohey's opinion that you could
simultaneously serve in these positions, but that you would have to
abstain from discussion or voting on the appointment of Sewer
Authority Board Members to avoid a conflict of interest. You have
submitted Mr. Toohey's written opinion, which document is
incorporated herein by reference.
You state that your Board is not opposed to your running for
and, if elected, being a part -time Supervisor and remaining in your
job at the Sewer Authority. You state that no one has challenged
Shirley A. King
8890 Old French Road
Erie, PA 16509 -5459
Re: Simultaneous Service, Administrative Secretary /Manager for
Township Sewer Authority and Township Supervisor.
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. 80X 11470
• HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 2, 1993
93 -538
Shirley A. King
April 2, 1993
Page 2
your plans and in fact you have been asked to run for Supervisor
repeatedly in the past 14 years and your decision to run now has
been met with much enthusiasm.
You have enclosed copies of your current job description; a
two -page narrative authored by you pertaining to your background,
community involvement, and position on issues; and page 5 of the
February 25, 1993 Summit Township Sewer Authority meeting minutes
referencing your plans to run for the office of Township
Supervisor, all of which documents are incorporated herein by
reference.
Based upon the above, you request an advisory from the State
Ethics Commission.
Discussion: As Administrative Secretary /Manager for the Summit
Township Sewer Authority, you are a "public employee" as that term
is defined in the Ethics Law and hence you would be subject to the
provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. If
elected Township Supervisor, you would be a "public official" as
defined in the Ethics Law and hence in that capacity you would also
be subject to the provisions of the Ethics Law. 65 P.S. §402; 51
Pa. Code §1.1. You are advised that there is no such office as
"part- time" supervisor.
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.
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
Shirley A. King
April 2, 1993
Page 3
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 Summit Township Sewer Authority
is a properly formed Authority under the Municipality Authorities
Act and therefore is a separate governmental body from the
Township.
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 /employee in both capacities as Administrative Secretary/
Manager for the Summit Township Sewer Authority and as a Summit
Township Supervisor. Basically, the Ethics Law does not state that
it is inherently incompatible for a public official /employee to
simultaneously serve or be employed 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, you would
not be serving entities with interests which are inherently adverse
to each other.
This conclusion, however, is conditioned upon the assumption
that the Summit Township Sewer Authority is a separate governmental
body from the- Township. Were the Authority to be part of the
Township rather than a separate governmental body, the proposed
simultaneous 'service would constitute holding two Township
positions which would appear to be incompatible. See, 53 P.S.
SS65410, 65514.
Shirley A. King
April 2, 1993
Page 4
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 Township
Supervisor as to appropriations for the Authority which could
result in a private pecuniary benefit for you through a salary
increase or other mechanism. In each instance of a conflict of
interest, you 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 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; 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 Second Class Township
Code or Municipality Authorities Act.
Conclusion: As Administrative Secretary /Manager for the Summit
Township Sewer Authority, you are a "public employee" subject to
the provisions of the Ethics Law. If elected Township Supervisor,
you would be a "public official" as defined in the Ethics Law and
subject to the provisions of the Ethics Law in that capacity as
well. As a public official /employee, you may, consistent with
Section 3(a) of the Ethics Law, simultaneously serve in the
positions of Administrative Secretary /Manager of the Summit
Township Sewer Authority and Summit Township Supervisor, 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
Shirley A. King
April 2, 1993
Page 5
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 52.12.
ry truly yours,
Vincent Dopko,
Chief Counsel