HomeMy WebLinkAbout98-630 ConfidentialSTATE ETHICS COMMISSION
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HARRISBURG, PA 17108 -1470
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ADVICE OF COUNSEL
December 24, 1998
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(j) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.Da.us
98 -630
Re: Simultaneous Service, City Administrator and Sewer Authority Member.
This responds to your letters of November 23 and December 1, 1998, as well
as Mayor A's letter of November 11, 1998, by which you requested confidential
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act, Act 93 of 1998,
Chapter 11 imposes any prohibition or restrictions upon a City Administrator from
simultaneously serving as a Sewer Authority Member.
Facts: You are the appointed City Administrator ( "CA ") for City B "(City "), a
Third Class City under the Commission form of government. The City Mayor has asked
that you accept a part-time board appointment to the C Area Sewer Authority
( "Authority "), which operates independently and is governed by the Municipal
Authorities Act. You have no personal interest in the Authority.
Additionally, in your letter of December 1, 1998, you state that if you were
appointed to the Authority, you would not resign your position as CA. You state that
your position as CA causes you to be a member of numerous other local boards and
commissions and you view the proposed position on the Authority in the same way.
You ask for an advisory from the State Ethics Commission as to whether you
may simultaneously serve as City Administrator and as a Member of the Authority.
Discussion: As City Administrator for City B ( "City "), you are a "public
employee" as that term is defined in Public Official and Employee Ethics Act, ( "Ethics
Act ") and hence you are subject to the provisions of the Ethics Act. Act 93 of 1998,
Chapter 11; 51 Pa. Code § 1 1.1.
Sections 1 103(a) and 1 103(j) of the Ethics Act provide:
Section 1 103. Restricted activities.
Confidential Advice, 98 -630
December 24, 1998
Page 2
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.
Act 93 of 1998, Chapter 11, §§1103(a), (j).
The following terms that pertain to conflicts of interest under the Ethics Act are
defined as follows:
Section 1102. 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. The term 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.
Act 93 of 1998, Chapter 11, §1102.
In applying the above provisions of the Ethics Act 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.
Confidential Advice, 98 -630
December 24, 1998
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, pursuant to Section 1 103(a) of
the Ethics Act, 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 1103(a).
Absent a statutorily - declared incompatibility or an inherent conflict under
Section 1103(a), the Ethics Act 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 1 103(j) as set forth above.
In this case, based upon the facts which have been submitted, there does not
appear to be an inherent conflict that would preclude simultaneous service as City
Administrator and Authority Member. Consequently, such simultaneous service would
be permitted within the parameters of Sections 1103(a) and 1103(j). Section 1103(a)
of the Ethics Law does not prohibit public officials /public employees from having
outside business activities or employment; however, the public official /public employee
may not use the authority of his public position — or confidential information obtained
by being in that position — for the advancement of his own private pecuniary benefit
or that of a business with which he is associated. Pancoe, Opinion 89 -01 1. Examples
of conduct that would be prohibited under Section 1103(a) would include: (1) the
pursuit of a private business opportunity in the course of public action, Metrick, Order
No. 1037; (2) the use of governmental facilities, such as governmental telephones,
postage, staff, equipment, research materials, or other property, or the use of
governmental personnel, to conduct private business activities, Freind, Order No. 800;
Pancoe, supra; and (3) the participation in an official capacity as to matters involving
the business with which the public official /public employee is associated in his private
capacity, such as the review /selection of its bids or proposals, Gorman, Order No.
1041.
If the private employer or business with which the public official /public
employee is associated would have a matter pending before the governmental body,
the public official /public employee would have a conflict of interest as to such matter.
Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public
official /public employee would be required to abstain from participation and to satisfy
the disclosure requirements of Section 1 103(j).
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As City Administrator for City B, you are a "public employee"
subject to the provisions of the Ethics Act. You may, consistent with Section 1 103(a)
of the Ethics Act, simultaneously serve in the positions of City Administrator and
Confidential Advice, 98 -630
December 24, 1998
Page 4
Authority Member, 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 Act.
Pursuant to Section 1 107(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.
cerely,
Vincent J. op o
Chief Counsel