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Home My WebLink About95-523 HobaughSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 1, 1995 Robert J. Hobaugh, Jr., Esquire Weaver, Mosebach, Piosa, Hixson & Merles One Windsor Plaza, Suite 200 7535 Windsor Drive Allentown, PA 18195 -1014 Re: Simultaneous Service, Borough Councilman and Borough Employee. Dear Mr. Hobaugh: This responds to your letter of January 23, 1995, 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 councilman from also serving or being employed as a borough employee. Facts: As Solicitor and on behalf of the Borough Councilmember whose conduct is in question, you seek an advisory opinion. You ask whether the Borough may pay a Borough Councilmember the sum of $225.00 for 22.5 hours work performed by the Borough Councilmember for the municipality. The work performed was in the nature of emergency repairs to the municipal water system during a course of a two or three day period at the rate of $10.00 per hour which Council believes is reasonable compensation. The Borough Councilmember has previously provided extensive water services for the Borough and has never requested or received compensation. The Borough wishes to compensate the Councilmember, acknowledging the individual's meritorious and valuable service to the Borough in that situation. No payment has been made to date. Discussion: As a Councilmember for Borough, the individual 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. 95 -523 Hobaugh, Jr., Robert J., Esquire, 95 -523 March 1, 1995 Page 2 Section 2. Definitions. (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: "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. 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 Borough Councilmember were to serve both as a public official /employee and as Borough employee. Basically, the Ethics Law does not state that it is inherently incompatible for a public official/ employee to serve or be employed as Borough employee. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of Hobaugh, Jr., Robert J., Esquire, 95-523 March 1, 1995 Page 3 two persons, groups, or entities whose interests may be inherently adverse. Smith Opinion, 89 -010. In the situation outlined above, he 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, the Borough Councilmember 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. Under Section 3(a) of the Ethics Law, the Borough Councilmember would have a conflict in voting to award the payment to himself. Accordingly, he must abstain and observe the disclosure requirements of Section 3(j) noted below. Section 3(j) of the Ethics Law provides 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 Hobaugh, Jr., Robert J., E equite, � `95 - 523 March 1, 1995 Page 4 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. When 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. Although there is no prohibition for the receipt of the payment, subject to the qualifications noted above under thee Ethics Law, caution is expressed regarding the propriety of the receipt of such payment under the Borough Code. Section 1104 of the Borough Code, as amended, does place specific limitations on Borough Councilmembers from working and receiving compensation as Borough employees. It is recommended that the Borough Solicitor be consulted regarding the propriety of the receipt of such a payment under the Borough Code. 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 Councilmember for the Borough, the individual is a "public employee" subject to the provisions of the Ethics Law. As a public official /employee, the Borough Councilmember may, consistent with Section 3 (a) of the Ethics Law, receive payment for services performed for the Borough 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 Robaugh, Jr., Robert J., Esquire, 95 -523 March 1, 1995 Page 5 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. Sincerely, Vincent JJ Dopko Chief Counsel