HomeMy WebLinkAbout94-502 MollSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 12, 1994
Hurley C. Moll, Chairman
Valley Township Municipal Authority
1125 Continental Boulevard 94-502
Danville, PA 17821
Re: Simultaneous Service, Member of Authority Board and Employee
of Authority.
Dear Mr. Moll:
This responds to your letters of November 12, 1993, and
December 2, 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 of a municipal
authority board from also being employed by that authority.
Facts: You are a Member
Municipal Authority Board.
operation as a waste water
This facility was purchased
Department of Environmental
plant were borrowed.
and Chairman of the Valley Township
The Authority has been in active
treatment facility since June, 1991.
from a commercial group upon order of
Resources. The funds to purchase the
The Authority Board consists of five Members who hold regular
monthly meetings. To date, the business of the Authority has been
performed by the Chairman and Treasurer of the Authority. The
Treasurer is responsible for receiving and disbursing all funds.
The Chairman is responsible for all other business including
reading meters, customer billing, bookkeeping functions, line
inspections, and all other duties.
A question has arisen as to whether you may become an employee
of the Authority performing the duties of a business manager. You
would be doing line inspections, meter readings, customer billing,
bookkeeping, and the like.
Based upon the above, you request an advisory from the State
Ethics Commission.
Hurley C. Moll, Chairman, 94 -502
January 12, 1994
Page 2
Discussion: As a Member of the Valley Township Municipal
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. 5402; 51 Pa. Code §11.1.
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:
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.
Hurley C. Moll, Chairman, 94 -502
January 12, 1994
Page 3
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 and
as an employee of the Municipal Authority. Basically, the Ethics
Law does not state that it is inherently incompatible for a public
official to serve or be employed as business manager for the
Municipal Authority. 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 this situation,
you would not be serving entities with interests which are
inherently adverse to each other.
In resolving this question, however, the Municipality
Authorities Act, to the extent that it impacts upon the Ethics Law
regarding the issue of whether the board member would be using the
authority of office to obtain a private pecuniary benefit for
himself, also must be reviewed. Confidential Opinion 91 -001.
In this regard, the Commission has held that if a pecuniary
benefit is prohibited by law, then the receipt of that benefit
through the use of authority of office would be a private pecuniary
benefit for the public official /employee contrary to Section 3(a)
of the Ethics Law. Confidential Opinion, 91 -001.
The Municipality Authorities Act provides in part as follows:
Every Authority is hereby granted, and
shall have and may exercise all powers
necessary or convenient for the carrying out
of the aforesaid purposes, including but
without limiting the generality of the
foregoing, the following rights and powers:
(f) To make by -laws for
regulation of its affairs.
(g) To appoint officers,
and servants, to prescribe
fix their compensation.
the management and
agents, employees
their duties and to
53 P.S. S306B.
The Municipality Authorities Act further provides:
B. Members shall hold office until
their successors have been appointed, and may
Hurley C. Moll, Chairman, 94 -502
January 12, 1994
Page 4
succeed themselves, and, except members of the
boards of Authorities organized or created by
a school district or school districts, shall
receive such salaries as may be determined by
the governing body or bodies of the
municipality or municipalities, but none of
such salaries shall be increased or diminished
by such governing body or bodies during the
term for which the member receiving the same
shall have been appointed. . .
C. A majority of the members shall
constitute a quorum of the board for the
purpose of organizing the Authority and
conducting the business thereof and for all
other purposes, and all action may be taken by
vote of a majority of the members present,
unless in any case the by -laws shall require a
larger number. The board shall have full
authority to manage the properties and
business of the Authority and to prescribe,
amend and repeal by -laws, rules and
regulations governing the manner in which the
business of the Authority may be conducted,
and the powers granted to it may be exercised
and embodied. The board shall fix and
determine the number of officers, accents and
employees of the Authority and their
respective powers, duties and compensation and
may appoint to such office or offices any
member of the board with such powers, duties
and compensation as the board may deem
proper. . . .
53 P.S. SS3098, C (Emphasis added).
A determination must be made by reviewing the language of the
Municipality Authorities Act, 53 P.S. 5309, supra The
Municipality Authorities Act does indeed authorize a municipal
authority board with the power to ". . . fix and determine the
number of offices, agents and employees of the Authority and their
respective powers, duties and compensation. . •' but then provides
that the board ". . . may appoint to such office or offices any
member of the board with such powers, duties and compensation as
the board may deem proper."
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
Hurley C. Moll, Chairman, 94 -502
January 12, 1994
Page 5
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, 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.
Thus, you may take the position with the Authority, however,
in doing so it is noted that the following qualifications are
applicable in this case. First, as a Board Member, you could not
use the authority of office by participating in or voting in favor
of your own appointment or in other matters concerning your
employment such as salary raises, reviewing questions concerning
your job performance, etc. Koslow, Order No. 458 -R, affirmed,
Koslow-v. State Ethics Commission, 116 Pa. Commw. 19, 540 A.2d 1374
(1988). Secondly, it is expressly assumed that the position is a
legitimate position of employment, not merely a position created to
allow a board member to receive compensation not authorized by the
governing body and that the person filling the position will
perform the duties of the position. Swick /Arran, Opinion No. 91-
006. Subject to the two qualifications noted above, you would not
be prohibited in the position of employment.
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 Valley Township Municipal
Authority, 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 Authority Member and Authority employee, 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
Hurley C. Moll, Chairman
January 12, 1994
Page 6
on the Advice given.
This letter is a public record and will be made available as
such.
.94 -502
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).
ncerely,
Vincent . Dopko
Chief Counsel