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HomeMy WebLinkAbout95-588 OBartoDaniel E. O'Barto 1406 Pine Street South Greensburg, PA 15601 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 28, 1995 95 -588 Re: Conflict, Simultaneous Service, Public Official /Employee, Borough Council Member, Municipal Authority Member, Salary. Dear Mr. O'Barto: This responds to your letter of June 28, 1995 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a municipal authority board member who may be elected to borough council from holding both positions and accepting the salary for one, the other or both positions. Facts: After referencing a recent telephone inquiry to the Ethics Commission, you ask for an advisory regarding your nomination on both the Democratic and Republican ballots for Councilman in the Borough of South Greensburg. You currently hold the position of Treasurer of the Greater Greensburg Sewage Authority (GGSA) with a salary of $100.00 per month. Your appointment on the Authority expires in January of 1996. You ask whether you may hold both positions and, if so, whether you may accept one or the other salary. After you asked the Authority solicitor for an opinion, he advised that the law was vague and that you could only accept the lower salary from the Borough of $75.00 per month and not the new salary of $200.00 per month from the Authority. On July 27, 1995, you provided the following additional information through a telephonic communication. You serve as a board member of the GGSA which is a regional authority created by the City of Greensburg and the Boroughs of Southwest Greensburg and South Greensburg. You were elected to the position of Treasurer by the GGSA Board and receive the $100.00 a month salary as a board O'Barto, Daniel E., 95 -588 July 28, 1995 Page 2 member. A new salary of $200.00 has been approved by the governing bodies for newly appointed GGSA board members. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Board Member for GGSA, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. 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 in the Ethics Law as follows: 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. O'Barto, Daniel E., 95 -588 July 28, 1995 Page 3 "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 anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 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 O'Earto, Daniel E., 95 -588 July 28, 1995 Page 4 vote to break the tie vote if disclosure is made as otherwise provided herein. 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. 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 and as Borough Council Member. Assuming the Authority is a governmental entity separate from the Borough under the Municipality Authorities Act, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve as Borough Council Member. 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. As to the second question of the receipt of salary in the one, the other or both positions, the Commission has determined if a particular statutory enactment prohibits an official from receiving a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether compensation would constitute a prohibited "private pecuniary benefit" under the Ethics Law, the provisions of the Municipality Authorities Act (MAA) must be reviewed: Members shall hold office until their successors have been appointed, and may succeed themselves, and . . . shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities. 53 P.S. §309(B). In order to determine whether such pecuniary benefit is strictly prohibited by law and, therefore, a private pecuniary benefit, the provisions of the Borough Code must be also reviewed: O'Barto, Daniel E., 95 -588 July 28, 1995 Page 5 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 office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. 53 P.S. §46104. Lichty, Advice 92 -635 concluded that simultaneous service as a councilmember and an authority board member was permitted by the Borough Code. However, with respect to the compensation question, that advice stated: It is not clear whether a position on the Municipal Authority, which has presumably been created under the Municipality Authorities Act, 53 P.S. §301 et seq., and is a separate governmental body from the Borough Council, would be deemed to be a Borough position. Therefore, while it is clear that the Borough Code would not preclude you from holding both positions, a judicial determination would be required as to whether you could be compensated as an Authority member. Lichty, Advice 92 -635 at 6(emphasis in original). Therefore, borough councilmembers may also serve as authority board members under the Borough Code without transgressing the Ethics Law. However, determining whether such councilmembers may receive compensation as authority members requires a more in -depth statutory analysis of the Borough Code. The Commission jurisdiction is limited to the Ethics Law and only peripherally involves other laws to determine whether a particular pecuniary benefit is not authorized, or "private." Therefore, until an appropriate judicial forum interprets the relevant portion of the Borough Code, it is not clear whether a councilmember may be compensated as an authority member. Assuming the appropriate forum decides that compensation is not permitted as per the above quoted prohibition in the Borough Code, a councilmember who accepts compensation as an authority member would be receiving a private pecuniary benefit contrary to Section 3(a) of the Ethics Law. Assuming, on the other hand, the appropriate forum decides that such compensation is not prohibited by the above quoted provision of the Borough Code, a councilmember who accepts compensation as an authority member would not be receiving a private pecuniary-benefit and would not be contrary to Section 3(a) of the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, O'Barto, Daniel E., 95 -588 July 28, 1995 Page 6 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 Board Member for GGSA, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a borough councilmember who is also an authority board member may or may not be allowed to accept compensation as a member or officer of the GGSA depending upon the appropriate judicial forum determining whether such compensation is permitted under the Borough Code, 53 P.S. §46104. Lastly, the propriety of the proposed 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 thirty (30) 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 thirty (30) days may result in the dismissal of the appeal. cerely, Vincent 5. Dopko Chief Counsel 0,4