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HomeMy WebLinkAbout96-570 ChristDonald M. Christ Chairman Board of Supervisors Lynn Township 7923 Kings Highway Lynnport, PA 18066 Dear Mr. Christ: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 18, 1996 96 -570 Re: Simultaneous Service, Second Class Township, Chairman, Board of Supervisors, Roadmaster, Sewer Authority Chairman, Plant Relief Operator. This responds to your letter of May 30, 1996 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 the Chairman of a Township Board of Supervisors who is also a roadmaster from also serving as Sewer Authority Chairman and as a plant relief operator under an arrangement whereby the Sewer Authority would reimburse the Township for the hours worked by this individual for the Authority. Facts: As Chairman of the Lynn Township Board of Supervisors, you request advice from the State Ethics Commission. First, you ask whether it would be a conflict of interest for you to serve as Chairman of the Lynn Township Sewer Authority in addition to your position as Chairman of the Board of Supervisors. You state that the Sewer Authority is an active, working entity which is independent from the Township. Next, you state that a question has arisen as to whether you can remain a full time employee of the Township and have the Sewer Authority reimburse the Township for the hours you work. Although your letter is somewhat vague, it appears that you are a roadmaster for the Township and a plant relief operator for the Sewer Authority. Payment from the Authority includes hourly wage plus all benefits including pension. You note that the Authority has spoken to the two remaining Board Members regarding this matter. You state that they were in agreement with the "work schedule" as long as no Township funds were used for time spent on Authority work. You further state that this was also brought to the attention of the elected Auditors of Lynn Township who also were in agreement under the same terms. Christ, 96 -570 June 18, 1996 Page 2 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 i 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 Chairman for the Lynn Township Board of Supervisors, 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. As a Member and Chair of the Lynn Township Sewer Authority, you would also be a public official subject to the Ethics 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. "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 Christ, 96 -570 June 18, 1996 Page 3 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 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. 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 merely from simultaneous service as a public official in both capacities as Chairman of the Board of Supervisors for Lynn Township and as Chairman of the Lynn Township Sewer Authority. Basically, the Ethics Law does not state that it is inherently incompatible for a public official to simultaneously serve in these 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, Christ, 96 -570 June 18, 1996 Page 4 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. Thus, for example, you clearly would have a conflict and could not participate in appointing yourself to the Lynn Township Sewer Authority, nor could you vote to set your own salary for serving on that Authority. See, Koslow, Order No. 458 -R; aff'd., Koslow v. State Ethics Commission, 116 Pa.Cmwlth. 19, 540 A.2d 1374 (Pa. Commw. Ct. 1988), alloc.., Pa. , 553 A.2d 971 (1988). 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 with the appropriate person (supervisor or secretary who keeps the minutes). As for your employment positions with the Township and the Sewer Authority, it is clear that the Second Class Township Code permits a Township Supervisor to be employed as a roadmaster for the Township. Act 1995 -60, §602(c). The State Ethics Commission has ruled that a Member of an Authority may be an employee of the Authority, Swick /Aman, Opinion 91 -006, and as noted above, you are apparently employed by the Authority as a plant relief operator. However, your question as to whether you can "remain a full time employee of the Township and have the Sewer Authority reimburse the Township for [your] hours worked," where "Payment from the Authority includes hourly wage, plus all benefits including pension," is beyond the jurisdiction of the Ethics Law. It is not for the State Ethics Commission to instruct the Township and the Authority as to such financial arrangements. Dice, Opinion 85 -021. However, if compensation is allowable under the applicable municipal code, it is permissible under the Ethics Law. Courter /Dotterer, Opinion 93 -001. You are cautioned, however, that in your capacities as a public official you would have a conflict of interest in such matters. Furthermore, in either of your positions as a public official, you could not use the authority of your public position for a private pecuniary benefit such as a benefit which would not otherwise be available to you if this proposed payment arrangement were not approved. 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 Chairman of the Board of Supervisors for Lynn Township, you are a public official subject to the provisions of the Ethics Law. As a Member or Chairman of the Lynn Township Sewer Authority, you would also be considered a "public official" subject to the Ethics Law. As a public official, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the aforesaid positions subject to the restrictions, conditions and qualifications set forth above. Pursuant to Christ, 96 -570 June 18, 1996 Page 5 Section 3(a), you may not use the authority of either of these aforesaid public offices for a private pecuniary benefit, either for yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated. In each instance of a conflict of interest, you would be required to abstain fully and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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 thirty (30) 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- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, Vincent `1 Dop o Chief Counsel