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HomeMy WebLinkAbout97-592 TiffanySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 15, 1997 Robert F. Tiffany PO Box 45 97-592 South Montrose, PA 18843 Re: Simultaneous Service, Township Municipal Authority, Part-time Employee, Board Member. Dear Mr. Tiffany: This responds to your letter of June 10, 1997, by 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 Member of a Township Municipal Authority from also serving as an employee of the Authority. Facts: You presently work part -time for the Bridgewater Township Municipal Authority (BTMA). You have also been asked to become a Member of BTMA's Board of Directors. You state that there have been problems in the past with Board Members having conflicts of interest. You request an advisory from this Commission so that you may avoid any conflict of interest problems. Discussion: If you would be appointed to the Bridgewater Township Municipal Authority (BTMA), you would in that position be a "public official" as that term is defined in the Ethics Law and hence you would be subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. Sections 3(a) and 3(j) of the Ethics Law provide: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 Tiffany, 97 -592 July 15, 1997 Page 2 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. 65 P.S. §§403(a), (j). The following terms that pertain to conflicts of interest under the Ethics Law are defined 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 applying the above provisions of the Ethics Law to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. Tiffany, 97 -592 July 15, 1997 Page 3 6, §2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. Turning to the question of conflict of interest, the State Ethics Commission has held that Section 3(a) of the Ethics Law would not prohibit a municipal authority board member from simultaneously serving in a compensated position of employment with the authority on which he serves. Swick /Aman, Opinion No. 91 -006. However, pursuant to Section 3(a) of the Ethics Law, the Authority Member /Authority employee would be prohibited from using the authority of his public position or confidential information received by holding such position for a prohibited private pecuniary benefit. Thus, for example, the authority board member could not use the authority of office by participating in matters concerning his own authority employment such as salary raises, his job performance, etc. J , Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, 540 A.2d 1374 (Pa. Commw. Ct. 1988). Based upon the facts which have been submitted, your proposed simultaneous service as a BTMA Board Member and as a part-time employee of BTMA would be permitted within the parameters of Section 3(a). In each instance of a conflict of interest, you would be required to abstain and to 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. Conclusion: If you would be appointed to the Bridgewater Township Municipal Authority (BTMA), you would in that position be a "public official" subject to the provisions of the Ethics Law. You may, consistent with Section 3(a) of the Ethics Law, simultaneously serve as a BTMA Board Member and as a part-time employee of BTMA, 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. 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 § la 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 Tiffany, 97 -592 July 15, 1997 Page 4 the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Vincent J. Dopko Chief Counsel