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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