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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