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HomeMy WebLinkAbout94-545 MercerDonald L. Mercer P.O. Box 62 Troutville, PA 15866 Dear Mr. Mercer: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 8, 1994 94 -545 Re: Simultaneous Service, Borough Council Member and Borough Employee. This responds to your letter of March 9, 1994, 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 Council Member from also serving or being employed as a Borough employee. Facts: You are a Member of the Troutville Borough Council. The Borough has a population of approximately 150 to 200 residents. There are five Council Members and there are no Borough employees. One Council Member is the Street Supervisor and was appointed by Council to do the snowplowing. You state that this individual has been unable to perform the job on a regular basis and has called you and another Council Member to do the plowing for him. This practice has been occurring for some period of time without any problems. Now a problem has arisen between the Council Members regarding payment for the snow plowing. You state that you have reviewed sections 1101 and 1104 of the Borough Code and cannot find anything which would prohibit such payment. In addition, you state that Council Members are paid $5.00 each month if they attend the Council meetings, not including special meetings. When anyone does any plowing, they are paid $4.25 per hour. When you and the other Council Member do plowing, it is with full approval of the Council and when Council Members hand in their time, they do not vote on payments for themselves. Their bills are set aside from the regular bills and are voted on separately. Because there is confusion as to how the law is interpreted, you request an advisory from the State Ethics Mercer, Donald L., 94 -545 April 8, 1994 Page 2 Commission as to whether, pursuant to the Ethics Law, Council Members may be paid to work for the Borough as set forth above. Discussion: As a Council Member for the Borough of Troutville, 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 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: 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 Mercer, Donald L., 94 -545 April 8, 1994 Page 3 understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Section 3(j) of the Ethics Law 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. 65 P.S. S403(j). 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. Advisories may only address questions regarding the duties and responsibilities of public officials /employees within the purview of the Public Official and Employee Ethics Law. If, however, Mercer, Donald L., 94 -545 April 8, 1994 Page 4 certain provisions of other laws impact upon the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then it may be necessary to review such provisions of law. Confidential Opinion 90 -012, at 5 (Citing Bigler, Opinion 85 -020) (Reviewing Municipality Authorities Act.) Accord, Confidential Opinion 91 -001 at 4 (Reviewing Second Class Township Code). Under Section 3(a) of the Ethics Law quoted above, the Commission has determined that if a particular statutory enactment prohibits an official's receipt of a particular benefit, then that official's receipt of such a prohibited benefit, in and through the authority of office, would also be in contravention of the Ethics Law. Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Cmwlth. 529, 466 A.2d 283 (1983). In this case, the relevant statutory enactment to be reviewed is Section 1104 of the Borough Code, which provides in pertinent part: S46104. Appointments; Incompatible Offices. Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough official created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. two elected borough official of a borough with a population of 3.000 or more may serve as an emvloyee of that borough Where there is no compatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary of treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S. 546104 (Emphasis added). In considering the above provision of law, the focus of an application of the Ethics Law would be to determine whether Mercer, Donald L., 94 -545 April 8, 1994 Page 5 receiving compensation as employees of the Borough while simultaneously serving as a Member of the Borough Council would be the receipt of a prohibited benefit, in and through the authority of office, such that it would be in contravention of the Ethics Law. The relevant portion of the above provision prohibits an elected borough official of a Borough with as population of 3,000 or more from serving as an employee of that Borough. Although this Commission would not have the express statutory authority to interpret this provision of the Borough Code, it seems clear, based upon your representation that the population of the Borough of Troutville is under 3,,000, that the receipt of compensation as Borough employees while simultaneously serving as Members of the Borough Council would not be the receipt of a prohibited benefit in and through the use of authority of office. See Deitrick, Opinion 89 -022 and Moser, Advice 93 -506. 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 the Borough Council Members were to serve both as a public official /employee and as Borough employees. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as employees of 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 inherently adverse or in a manner whereby the public official is using public office for a private pecuniary benefit. For example, it would be contrary to the Ethics Law for Council Members to use the authority of office in such a way that they would be creating more hours for themselves. as Borough employees which would result in the receipt of additional compensation as Borough employees. Smith Opinion, 89 -010. In this case, since it is the - Street Supervisor who contacts you to do the work, it is factually assumed that you are not in charge_ of determining your own work hours. Thus, therewould not be the use of authority of office. Turning to the question of conflict of interest, pursuant to Section 3(a) of 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, 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, Borough Council Members would be required to fully abstain and to publicly announce Mercer, Donald L., 94 -545 April 8, 1994 Page 6 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 Borough Council Member for the Borough of Troutville, you area "public official" subject to the provisions of the Ethics Law. As public officials /employees, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the position of Borough Council Member and Borough 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 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 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 - 7870806). ncerely, Vincent J Dopko Chief Counsel