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HomeMy WebLinkAbout95-510 TaylorJames A. Taylor, Esquire Murrin, Taylor, Flach & Horan Attorneys at Law 110 East Diamond Street Butler, PA 16001 -5999 Dear Mr. Taylor: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 2, 1995 95 -510 Re: Simultaneous Service, Regional Municipal Authority and Township Water Authority. This responds to your letter of December 29, 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 municipal authority member from also serving or being employed by another municipal authority. Facts: Mr. William Weaver is a Member of both the Breakneck Creek Regional Authority (BCRA) and Adams Township Water Authority (ATWA), two Authorities organized by the Supervisors in Adams Township, Butler County, Pennsylvania. BCRA is a municipal sewer authority organized under the Municipality Authorities Act of Pennsylvania and the ATWA is an Authority organized under that Act to provide water to Adams Township. The BCRA is comprised of five member, two appointed by Mars Borough and three appointed by Adams Township. The ATWA is comprised of five members, all of whom are appointed by Adams Township. You have submitted two letters from residents of Adams Township requesting the resignation of Weaver citing a conflict under Section 10(d) of the Municipality Authorities Act. After stating that you have determined that no violation exists regarding that Section of the Municipality Authorities Act, you ask whether Weaver may be required to resign from both the BCRA and ATWA. Weaver is the owner of Weaver Master Builders which does business in Adams Township as a home construction business. In addition, Weaver is involved in the partnership, Mars Land Associates, in which he is one of six partners who own approximately 50 acres in Adams Township. Weaver and his wife own a house and lot in Mars Borough in which office space is used by Taylor, James A., Esquire, 95 -510 February 2, 1995 Page 2 his company. Lastly, Weaver's wife is an agent for the Prudential Preferred Realty with offices in adjoining Cranberry Township where sales agreements are often negotiated for property in Adams Township. You conclude by requesting advice as to the propriety of Weaver continuing to serve as both a member of the BCRA and ATWA. Discussion: As Municipal Authority Board Member for Adams Township, Weaver is a "public official" as that term is defined in the Ethics Law and hence he is 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 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 Taylor, James A., Esquire, 95 -510 February 2, 1995 Page 3 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 Weaver were to serve both as a public official /employee on the boards of the two Authorities. Basically, the Ethics Law does not state that it is inherently incompatible for a public official / employee to serve or be employed in such positions. 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 two public positions outlined above, Weaver 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, Weaver 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). As to the question you have posed regarding whether Weaver would be required to resign, you are advised that the Ethics Law does not require the resignation of Weaver. In fact, the Ethics Law does not empower the Commission to direct the resignation or removal of a public official /employee from office. However, even though Weaver is not required to resign, he as an Authority Board Member would have a conflict as to a number of situations: matters involving Weaver Master Builders that would come before either Authority, matters involving his partnership Mars Land Associates that would have matters pending before either Authority, matters involving Prudential Preferred Realty which is a business with which a member of Weaver's immediate family is associated and matters involving his or his wife's clients who have matters pending before either municipal authority. See Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. Taylor, James A., Esquire, 95 -510 February 2, 1995 Page 4 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 herein is the applicability of the Municipality Authorities Act. Conclusion: As a member of two municipal Authorities, Weaver is a "public official" subject to the provisions of the Ethics Law. As a public official /employee, Weaver may, consistent with Section 3(a) of the Ethics Law, simultaneously serve as a board member on two municipal authorities, subject to the restrictions, conditions and qualifications set forth above. Weaver, however, would have a conflict under Section 3(a) of the Ethics Law involving any businesses with which he or his spouse are associated as well as clients of those businesses. In such instances, Weaver must observe the disclosure requirements of Section 3(j) of the Ethics Law. 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. This letter is a public record and will be made available as such. 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 FAS 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. cerely, Vincent . Dopko Chief Counsel