HomeMy WebLinkAbout93-576 NeugebauerSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O.. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 30, 1993
Gerald P. Neugebauer, Jr., Esquire 93 -576
Law Building
Ebensburg, PA 15931
Re: Simultaneous Service, Chairman, Township Board of Supervisors,
Member, Township Municipal Authority.
Dear Mr. Neugebauer:
This responds to your letters of June 11, 1993, and June 21,
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 township from
also serving as a member of the township municipal authority.
Facts: You are the Solicitor for Cresson Township and Cresson
Township Municipal Authority. The Township operates and manages
the municipal water and sewer systems under an agreement with the
Township Municipal Authority.
Mr. Clarence E. Eger is an elected Supervisor of Cresson
Township and serves as Chairman of the three - member Board of
Supervisors. The Cresson Township Municipal Authority consists of
five members, all appointed by the Board of Supervisors of Cresson
Township. A recent resignation by one of the Members of the
Authority has created a vacancy which the Board of Supervisors of
Cresson Township wishes to fill by appointing Mr. Eger. You state
that the Board has voted, with Mr. Eger abstaining, to appoint Mr.
Eger to the position, upon the condition that no violation of the
State Ethics Law exists.
You indicate that Mr. Eger receives compensation from Cresson
Township for attending meetings and in his capacity as a Township
employee. You further indicate that all Members of the Township
Municipal Authority, except the Treasurer, serve without
compensation and Mr. Eger will not receive any compensation, direct
or indirect, as a Member of the Cresson Township Municipal
Authority.
Gerald P. Neugebauer, Jr., Esquire
June 30, 1993
Page 2
Based on the above, you requested an advisory from the State
Ethics Commission as to the propriety of Mr. Eger serving as a
Member of the Cresson Township Municipal Authority and as Chairman
of the Board of Supervisors of Cresson Township. Your initial
letter did not clearly state that you were authorized to make this
request. In your letter of June 21, 1993, you confirmed that your
inquiry was authorized by Mr. Clarence E. Eger.
Discussion: It is initially noted that your request for admixes may
only be addressed with regard to prospective conduct. A reading of
Sections 7(10) and 7(11) of the Ethics Law makes it clear that an
opinion or advice may be given only as to prospective (future)
conduct. If the activity in question has already occurred, the
Commission may not issue an opinion or advice but any person may .
then submit a signed and 'sworn complaint which will be investigated
by the Commission if there are allegations of Ethics Law violations
by a person who is subject to the Ethics Law.
It is further noted that pursuant to Sections 7(10) and 7(11)
of the Ethics Law, 65 P.S. §S407(10), (11), advisories are issued
to the requestor based upon the facts which the requestor has
submitted. In issuing the advisory based upon the facts which the
requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to
facts which have not been submitted. It is the burden of the
requestor to truthfully disclose all of the materials facts
relevant to the inquiry. 65 P.S. §S407(10), (11). An advisory
only affords a defense to the extent the requestor has truthfully
disclosed all of the material facts.
As a Supervisor for Cresson Township, Mr. Clarence E. Eger 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.
S402; 51 Pa. Code §11.1. If he is appointed to serve on the
Cresson Township Municipal Authority, he would be considered a
"public official" subject to the provisions of 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
constitutes a conflict of interest.
The following terms are defined under the Ethics Law:
Section 2. Definitions.
Gerald P. Neugebauer, Jr., Esquirfr..,
June 30, 1993
Page 3
"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 noted that this Advice
expressly assumes that the Cresson Township Municipal Authority is
a separate governmental body.
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 Mr. Eger were to serve both as Chairman of the
Board of Supervisors of Cresson Township and as a Member of the
Cresson Township Municipal Authority. Basically, the Ethics Law
does not state that it is inherently incompatible for a public
official /employee to serve Township Supervisor and Township
Municipal Authority Member. 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
Gerald P. Neugebauer, Jr., Esquire
June 30, 1993
Page 4
situation outlined above, Mr. Eger would not be serving entities
with interests which are inherently adverse to each other. This
conclusion, however, is expressly conditioned upon the assumption
that the Cresson Township Municipal Authority is a separate
governmental body from the Township. Were the Authority to be part
of the Township rather than a separate governmental body, Mr.
Eger's proposed simultaneous service would appear to be prohibited
under the Second Class Township Code which specifically enumerates
the only other township positions which a township supervisor may
hold. See, 53 P.S. §S65410(b), 65514.
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. In
each instance of a conflict of interest, Mr. Eger 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 the Municipality Authorities Act.
Conclusion: As a Township Supervisor for Cresson Township, Mr.
Clarence E. Eger is a "public official" subject to the provisions
of the Ethics Law. If he is appointed to serve as a Member of the
Cresson Township Municipal Authority, he would be considered a
"public official" subject to the Ethics Law in that position as
well. As a public official, Mr. Eger may, consistent with Section
3(a) of the Ethics Law, simultaneously serve in the positions of
Cresson Township Supervisor and Cresson Township Municipal
Authority 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.
Gerald P. Neugebauer, Jr., Esquire.
June 30, 1993
Page 5
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.
such.
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 writinct and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 513.2(h).
i
ry truly yours,
l
incent . Dopko,
Chief Counsel