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HomeMy WebLinkAbout93-613 MutschlerKevin Mutschler 326 Berry Street Baden, PA 15005 Dear Mr. Mutschler: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 18, 1993 93 -613 Re: Conflict, Public Official /Employee, Member of Borough Council, Simultaneous Service, Employee of Borough Municipal Authority, Laborer. This responds to your letter of October 6, 1993 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough council member from also being employed by the borough municipal authority as a laborer. Facts: You state that you will be serving on the Baden Borough Council for a four (4) year term beginning Monday, January 3, 1994. You are considering employment with the Baden Municipal Authority as a laborer at the Baden Sewage Treatment Plant. The Municipal Authority is a separate entity from the Borough. Based upon the above, you request an advisory from the State Ethics Commission as to whether a conflict of interest exists under the Ethics Law regarding your serving on the Borough Council and working for the Municipal Authority at the same time. Discussion: It is initially 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. SS407(10), (11). An advisory only affords a defense to the extent the requestor has Mutschler, 93 -613 October 18, 1993 Page 2 truthfully disclosed all of the material facts. As a Member of the Baden Borough Council, you will be a public official as that term is defined under the Ethics Law, and hence you will be subject to the provisions of that law. 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 in the Ethics Law as follows: 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 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 anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the Mutschler, 93 -613 October 18, 1993 Page 3 public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a Mutschler, 93 -613 October 18, 1993 Page 4 majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Turning to your specific inquiry, it is initially noted that the Borough Code and the Municipality Authorities Act of 1945 fail to reveal any statutory provisions declaring the position of Borough Council Member to be incompatible with service as an employee of a municipal authority which serves the Borough. 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 merely by virtue of simultaneous service as a Borough Council Member for the Borough of Baden and as an employee of the Baden Municipal Authority which serves the Borough. Basically, the Ethics Law does not state that it is inherently incompatible for a Borough Council Member to serve or be employed as an employee of a municipal authority which serves the Borough. 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 adverse. Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. See, Swick /Aman, Opinion 91 -006 and Bartaes, Advice 92 -628. 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. For example, you would be prohibited from being involved, in any manner, in the hiring of yourself as a municipal authority employee. See Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988) appeal denied 520 Pa. 609, 533 A.2d 972. Also, should any authority matter, which would have a financial impact upon you, come before the Borough Council, a conflict of interest would exist. Another example of where a conflict would arise for you would be as to appointments of Authority Members who would, in effect, be your employers. In analogous situations, the Commission has noted that official action where such a circular relationship exists presents a conflict of interest. See, Bassi, 86- 007 -R; Woodrina, 90 -001. In each instance of a conflict of interest, you would be required Mutschler, 93 -613 October 18, 1993 Page 5 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), thereby satisfying the requirements of Section 3(j), as set forth above. Should any other situations arise which may present a conflict of interest, additional advice may be sought from the Commission. 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 Borough Code or the Municipal Authorities Code. Conclusion: As a Member of the Baden Borough Council, you will become a public official subject to the provisions of the Ethics Law. As a public official, subject to the limitations, restrictions and conditions noted above, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve as a Member of the Borough Council for the Borough of Baden and as an employee of the Baden Municipal Authority. Lastly, the propriety of the proposed 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. Anv 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 513.2(h). cerely, Vi • ent J. Dopko Chief Counsel