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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