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HomeMy WebLinkAbout94-590 CeraulDavid J. Ceraul, Esquire 22 Market Street P.O. Box 19 Bangor, PA 18013 Dear Mr. Ceraul: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 15, 1994 94 -590 Re: Simultaneous Service, Township Solicitor and Borough Solicitor. This responds to your letter of July 15, 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 solicitor from also serving or being employed as a solicitor in another municipality. Facts: As Solicitor for both the Township of Washington and the Borough of Bangor, a conflict of interest question has arisen in light of certain matters that are now pending with the Bangor Municipal Authority (Authority), which owns and operates a sewage system which serves both Bangor Borough, Roseto Borough and a small portion of Washington Township. The Authority has invited Washington Township to consider designating certain sewer districts for ultimate hookup into the Authority sewer plant. If amendments are made to the Washington Township's Act 537 Plan with the Department of Environmental Resources (DER) and if an intermunicipal agreement is entered between Washington Township and Bangor Borough to implement said plan, your office would be called upon to draft aft agreement to address the various issues involved. At a July 13, 1994 public meeting of the Washington Township Board of Supervisors, Mrs. Carol Hummel, a Bangor Borough resident, appeared before the Board and raised an issue of a perceived conflict of interest on your part. Although you have previously advised both Bangor Borough Council and the Washington Township Board of Supervisors that you saw no conflict of interest at this juncture, you have advised both bodies that you would definitely step down if such a conflict would arise. You believe that it is Ceraul, David J, Esquire, 94 -590 August 15, 1994 Page 2 prudent to contact the Ethics Commission to determine if there is any violation of the Ethics Law or if in fact a conflict is present. You have been in contact with Mr. Jody Brogna, a Water Quality specialist in DER with whom you discussed your involvement in this matter. Neither Mr. Brogna nor legal counsel for DER, Barbara Smith, perceive any conflict at this juncture. Given the serious allegations that have been made at the public meeting of the Washington Township Supervisors by the Bangor taxpayer, you believe that it is appropriate to contact the Commission to request an opinion at this time. After noting that you have attempted to capsulize the factual circumstances to their best of your ability, you seek commentary from the Commission. You are willing to furnish any additional facts and circumstances that may be required and have set forth the names and addresses of the DER employees with whom you have discussed this matter. As a postscript, you have included a copy of Rule 1.7 of the Rules of Professional Conduct on which you have done some brief research and have concluded that you are in compliance with that rule. Discussion: As Solicitor for Washington Township and Bangor Borough, you are a "public official /employee" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 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 Ceraul, David J, Esquire, 94 -590 August 15, 1994 Page 3 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. 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 — solicitor for the two municipalities. Basically, the Ethics Law does not state that it is inherently incompatible for a public official / employee to serve or be employed as solicitors for two municipalities. 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 the situation outlined above, you would not be serving entities with interests which are inherently adverse to each other. 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 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 Ceraul, David J, Esquire, 94 -590 August 15, 1994 Page 4 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. Specifically not addressed is the applicability of the Rules of Professional Conduct. Conclusion: As Solicitor for Washington Township and Bangor Borough, you are a "public official /employee" 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 solicitors for the two municipalities, 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 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. ncerely, Vincent J..J Dopko Chief Counsel