HomeMy WebLinkAbout93-593 PetroskySTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 25, 1993
Ms. Katherine B. Petrosky
Township Manager
Township of North Huntingdon
Town House
11279 Center Highway
North Huntingdon, PA 15642
Re: Simultaneous Service, Township Commissioner and
Township Municipal Authority Member.
93 -593
Dear Ms. Petrosky:
This responds to your letter of July 23, 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 Commissioner from
also serving as a Member of the Township Municipal Authority.
Facts: The Board of Commissioners of North Huntingdon Township has
directed you to seek advice from this Commission regarding certain
actions being contemplated by the Board. Pursuant to a telephone
conference with this office, you confirmed that all seven
Commissioners agreed to have you seek this advisory. The Township
Municipal Authority is governed by a five - member board. These
members are appointed by the Board of Commissioners. The
Commissioners are considering asking the current members of the
Municipal Authority to resign. The Board would then fill the
positions on the Authority with five Township Commissioners. These
Commissioners would serve on the Authority without compensation.
Based on the above, you request and advisory from the State Ethics
Commission as to whether the Township Commission can serve on the
Municipal Authority.
Discussion: It is initially noted that your request for advice 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)
Petrosky, 93 -593
August 25, 1993
Page 2
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. SS407(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. SS407(10), (11). An advisory
only affords a defense to the extent the requestor has truthfully
disclosed all of the material facts.
As Commissioners for North Huntingdon Township, the Board
Members are "public officials" as that term is defined in the
Ethics Law and hence they are subject to the provisions of the
Ethics Law. 65 P.S. 5402; 51 Pa. Code 511.1. Those Board Members
appointed to serve on the North Huntingdon Township Municipal
Authority also would be considered "public officials" 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.
"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
Petrosky, 93 -593
August 25, 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.
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 Township Commissioners were to serve both as
Commissioners and as Municipal Authority Members. Basically, the
Ethics Law does not state that it is inherently incompatible for a
public official /employee to serve or be employed as Commissioners
and Municipal Authority Members. 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 Commissioners would not be
serving entities with interests which are inherently adverse to
each other.
Further, it is expressly assumed that no private pecuniary
benefit will be received and that no future private pecuniary
benefit is contemplated as a result of the appointments of the
Township Commissioners to the Township Municipal Authority. The
Commission has held that it is a violation of the Ethics Law for
Municipal Officials, after they voted themselves to positions on a
Municipal Authority, to then vote to set salaries or other
compensation for those municipal authority positions. See Zontek,
Order No. 897, Johnson , Order No. 865, Mance , Order No. 862 and
Painter, Order No. 861. As long as no private pecuniary benefit
will accrue to the Township Commissioners they may vote to appoint
themselves to the positions on the Township Authority. See also
Swick /Arran, Opinion 91 -006; Confidential Opinion, 90 -012.
Turning to the question of conflict of interest, pursuant to
Petrosky, 93 -593
August 25, 1993
Page 4
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, The
Commissioners 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.
Conclusion: As Commissioners for North Huntingdon Township, they
are "public officials" subject to the provisions of the Ethics Law.
As public officials they may, consistent with Section 3(a) of the
Ethics Law, simultaneously serve in the positions of Township
Commissioners and Township Municipal Authority Members, subject to
the restrictions, conditions and qualifications set forth above.
This Advice is conditioned on the express assumption that no
private pecuniary benefit will accrue to the Commissioners as
Members of the Authority. 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.
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 writinq and must be received at
the Commission within 15 days of the date of this Advice pursuant
Petrosky, 93 -593
August 25, 1993
Page 5
to 51 Pa. Code S13.2(h).
truly yours,
WzA
Vincent 3''. Dopko,
Chief Counsel