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HomeMy WebLinkAbout97-631 WentzMichael Wentz Mayor Borough of Walnutport 417 Lincoln Avenue Walnutport, PA 18088 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 11, 1997 Re: Simultaneous Service, Borough Mayor and Public Works Department Employee. Dear Mayor Wentz: This responds to your letter of November 6, 1997, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law imposes any prohibition or restrictions upon a Borough Mayor with regard to simultaneously being employed by the Borough's Public Works Department. Facts: As the newly - elected Mayor of the Borough of Walnutport, you request an advisory from the State Ethics Commission. In addition to your position as Mayor of the Borough of Walnutport, you are also a full -time employee of the Borough's Public Works Department. You state that it is your understanding that you can hold the position of Mayor as long as the Borough's population is less than 3,000. You inquire as to what restrictions may be placed upon you by the Ethics Law. You specifically inquire as to whether you may break a tie vote on the budget even though your wages would be affected, and whether you could break a tie regarding street reconstruction when overtime may be involved. Discussion: In your new capacity as Mayor of the Borough of Walnutport, you are a "public official" as that term is defined in the Public Official and Employe Ethics Law ( "Ethics Law ") and hence you are 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: 97 -631 Wentz, 97 -631 December 11, 1997 Page 2 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 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. Wentz, 97 -631 December 11, 1997 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 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. 6, §2. It is noted that the Borough Code provides: Appointments; incompatible offices 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. No elected borough official of a borough with a population of 3.000 or more may serve as an employe of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. . Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. 53 P.S. §46104 (Emphasis added). However, your letter indicates that the population of the Borough of Walnutport is less than 3,000. Although the State Ethics Commission does not have the express statutory authority to interpret other laws such as the Borough Code, 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, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict (See, Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 3(a). Absent a statutorily - declared incompatibility o7 an inherent conflict under Section 3(a), the Ethics Law would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 3(j) as set forth above. Wentz, 97 -631 December 11, 1997 Page 4 In this case, based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude your simultaneous service as Mayor of the Borough of Walnutport and as a Public Works Department employee of that same Borough. Consequently, such simultaneous service would be permitted within the parameters of Sections 3(a) and 3(j). Turning to your specific inquiries, you first ask whether you could break a tie vote on the budget even though your own wages as a Borough employee would be affected, and whether you could break a tie involving street reconstruction where overtime could be involved. Based upon the limited facts which you have submitted, only general guidance may be provided to you on these particular issues. A use of authority of office which would positively affect your own wages and /or overtime as a Borough employee would form the basis for a conflict of interest unless one of the statutory exceptions noted above would apply. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. As for the exceptions, it would seem the one most likely to apply would be the class /subclass exception. Specifically, you would not have a conflict of interest if you would be a member of a class /subclass of such Borough employees and if you would be affected to the same degree as the other members of the class /subclass. Under the facts which you have submitted, it is impossible to determine with certainty whether and to what extent you would be affected as compared to other Borough employees. Consequently, based upon a factual insufficiency, this Advice is necessarily limited to providing the above general guidance to your specific inquiries. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Conclusion: As Mayor of the Borough of Walnutport, you are 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 Mayor of the Borough of Walnutport and as an employee of the Public Works Department of that same 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 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. Wentz, 97 -631 December 11, 1997 Page 5 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, Sincerely, ( 6 1 t;ts , ,S\ _ 1 Vincent . Dopko Chief Counsel