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HomeMy WebLinkAbout93-629 RoadcapDebra Roadcap 37 Graeff Street Cressona, PA 17929 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 30, 1993 93 -629 Re: Simultaneous Service, Borough Mayor and Employee of Borough Authority. Dear Ms. Roadcap: This responds to your letter of November 23, 1993, and the letters of Solicitor Thomas J. Nickels dated November 15, 1993 and November 22, 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 borough mayor from also being employed by the borough authority. Facts: You have been an employee of the Cressona Borough Authority ( "Authority "), Schuylkill County, since August 29, 1988. The. Authority is a working sewer authority and a separate entity created under the Municipalities Authorities Act of 1945. You were hired as a clerk /secretary. Your wages and benefits are set by the Authority. You work for the Authority approximately 30 hours per week. You have submitted copies of minutes of the Authority regarding your employment, hours, salary, and benefits and these documents are incorporated herein by reference. In 1989, the Authority purchased a computer and you are the individual who does the computer work. Thereafter, the Authority was approached by Cressona Borough ( "Borough ") regarding including the Borough's sanitation billing with the Authority's sewer bills. An agreement was entered into for compensation for this service. In lieu of paying the Authority a large fee for computer time, the agreement calls for the Borough to reimburse the Authority for the time you spend doing the Borough sanitation billing work. The rate of reimbursement paid to the Authority by the Borough is your actual wage for the time spent doing sanitation billing, which wage is set by the Authority. The sanitation billing work takes approximately two to ten hours per week and is the only work the Authority does for the Borough. Debra Roadcap December 30, 1993 Page 2 On November 2, 1993, you were elected Mayor of Cressona Borough, a community with a population of less than 1700. This position pays a monthly Mayor's salary of $100.00. A question has been raised not as to the issue of you serving in both positions simultaneously but whether you may receive the Mayor's salary. You state that you are aware that Section 1104 of the Borough Code regarding appointments and incompatible offices. You indicate that your position with the Authority is not an elected position. Further, you are not the Borough Secretary, Treasurer or Manager. You state that you are not a "Borough Clerk" and the Borough has no jurisdiction over your wages or benefits. Your only supervisors are the five Authority members. You make this distinction specifically in response to the letters from Mr. Nickels because in his letters requesting advice on this matter, he calls you a "Borough Clerk ". Accordingly, you wrote to request advice on your own behalf clarifying Mr. Nickels' letter and supplying additional facts and details. Based upon the above, you request an advisory from the State Ethics Commission as to whether you may collect the $100.00 per month Mayor's salary. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §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. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Mayor for Cressona, Schuylkill County, you are a "public official" as that term is defined in the Ethics Law and hence (5) subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code S11.1. 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: Debra Roadcap December 30, 1993 Page 3 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 public official /employee would be influenced thereby. Further, it is noted that it is expressly assumed that in fact the Authority and the Borough are separate, distinct governmental bodies. 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 you were to serve both as a public official/ employee and as an employee of the Authority. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as an employee of a borough authority. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that you 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 Debra Roadcap December 30, 1993 Page 4 your public office for your private pecuniary benefit. For example, it would be contrary to the Ethics Law if you, as Mayor of Cressona Borough, would use your office in such a way that you would be creating more work for you to do as an Authority employee which would result in your receiving additional compensation as an Authority employee. Assuming that there is no such action on your part, you may, consistent with the Ethics Law, serve as Mayor of the Borough and receive the monthly Mayor's salary. Deitrick, Opinion No. 89 -022. 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 exist. 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 Mayor of Cressona Borough, you are a "public official" subject to the provisions of the Ethics Law. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Mayor and Authority employee and receive the Mayor's salary, 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. 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. Debra Roadcap December 30, 1993 Page 5 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 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). Ipcerely, Vincent . Dopko Chief Counsel cy4,