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HomeMy WebLinkAbout93-625 BoyerRosemary T. Boyer 220 West Boyer Street Williamstown, PA 17098 -1501 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 28, 1993 93 -625 Re: Simultaneous Service, Member and Secretary of Borough Authority, Employee of Borough, Secretary /Treasurer. Dear Ms. Boyer: This responds to your letter of October 30, 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 member and secretary of a borough authority from also being employed by the borough. Facts: By letter dated October 30, 1993, you requested an advisory from this Commission. On December 1, 1993, you contacted the Assistant Counsel for this Commission by telephone and clarified various facts related to your request and such conversation is incorporated herein. You have been a Member and Secretary of the Williamstown Borough Authority ( "Borough Authority ") since 1978. At the time of your appointment to the Borough Authority, you were unemployed. Shortly after your appointment, you accepted a position with Miner's National Bank of Pottsville, Williamstown Branch. In 1983, you left the bank for employment with the SPCC in Mechanicsburg. The Borough Authority is a separate governmental body created pursuant to the Municipalities Authorities Act of 1945 and operates the water system for Williamstown Borough ( "Borough ") and Williams Township. There also exists a Williamstown Sewer Authority ( "Sewer Authority") which is another separate governmental body created pursuant to the Municipalities Authorities Act of 1945. The Sewer Authority is not an operating authority, but is merely a "financial" authority. The Sewer Authority owns the property but through a leaseback agreement, the Borough operates the sewer plant and the individuals working at the plant are Borough employees. You stated in your telephone conference that you are the "recording Rosemary T. Boyer December 28, 1993 Page 2 secretary" for the Sewer Authority whereby you attend the meetings, take minutes and do other errands on a non - compensated, voluntary basis. In 1985, the Borough, the Borough Authority and the Sewer Authority created a position and opened one central office for the administration of all activities. Previously, all secretarial and bookkeeping activities were done at three separate locations. You applied for and, after being interviewed by an impartial committee, you were offered the position. In your subsequent telephone conference, you indicated that this position is that of Borough Secretary /Treasurer. In this position as a Borough employee, you do some clerical work for the Borough Authority and the Borough Authority pays the Borough for your services. You are not, however, an employee of the Borough Authority. You state that at the time you took the position of Borough Secretary /Treasurer, it was questioned by several Borough Council Members whether you could serve in both positions and it was agreed that you could so serve with the understanding that your position as a Member of the Borough Authority would not interfere with your duties as a Borough employee. In December, 1989, you were nominated and unanimously appointed to another term on the Borough Authority. You state that your status is again being questioned. You state that neither the Borough Solicitor nor the Authority Solicitor have ever expressed any opinions regarding this matter. You refer to the Borough Code, Section 1104. Appointments: Incompatible Offices and have enclosed a copy of that section which is incorporated herein by reference. You indicate that since 1985, you have diligently endeavored to keep separate your position with the Borough Authority from your position with the Borough. After questioning the motives of those who suggest a conflict may exist, you seek an advisory from the State Ethics Commission regarding your continued service with the Borough Authority and the Borough. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 5§407(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. Rosemary T. Boyer December 28, 1993 Page 3 As a Member of the Williamstown Borough Authority, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code S11.1. As a Secretary /Treasurer for Williamstown Borough, you are a "public employee" 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 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 Rosemary T. Boyer December 28, 1993 Page 4 public official /employee would be influenced thereby. Further, it is noted that it is expressly assumed that in fact Williamstown Borough and the Williamstown Borough Authority are separate, distinct governmental bodies. Further, it is expressly assumed that you did not use your position as Borough Authority Member to obtain the position of Borough Secretary /Treasurer. This assumption is based on your factual statements that you were offered the position after an impartial committee interviewed several candidates, including yourself. It is noted that the Ethics Law prohibits anyone from using authority of office or confidential information to advance his or her selection for a position or to eliminate any competitors for that position. Pepper, Opinion No. 87 -008. In applying the Ethics Law to this case, it is noted that your work with the Sewer Authority would not be prohibited. You are not compensated by the Sewer Authority and you serve on a volunteer basis. You are not an official or employee of the Sewer Authority and there is no obligation on your part whatsoever to serve or perform any function for the Sewer Authority. Accordingly, there would not be any conflict of interest as a result of your activity with the Sewer Authority. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any inherent conflict arising if you were to serve both as a public official in the capacity of a Member of the Borough Authority and as a public employee in the capacity of Borough Secretary/ Treasurer. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a Borough Authority Member and a Borough employee. 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 or act in any manner whereby you are using your public office for your private pecuniary benefit. For example, it would be contrary to the Ethics Law if you, as a Member of the Borough Authority, would use office in such a way that you would be creating more work for you to do as Borough Secretary /Treasurer for the Borough Authority which would result in your receiving additional compensation as a Borough employee. 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 Rosemary T. Boyer December 28, 1993 Page 5 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, you 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 a Member of the Williamstown Borough Authority, you are a "public official" subject to the provisions of the Ethics Law. As a Secretary /Treasurer of the Williamstown Borough, you are a "public employee" subject to the provisions of the Ethics Law in that position also. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Authority Member and Borough employee, subject to the restrictions, conditions and qualifications set forth above. Similarly, there is no prohibition from continuing your service upon the Williamstown Sewer 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Rosemary T. Boyer December 28, 1993 Page 6 Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). ry truly yours, wujl() Vincent J. Dopko, Chief Counsel