The URL can be used to link to this page

Home My WebLink About99-569 KovacikMatthew L. Kovacik 966 Perry Highway Pittsburgh, PA 15237 Dear Mr. Kovacik: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 6, 1999 Re: Simultaneous Service, Borough, Council Member and Pool Manager. Sections 1103(a) and 1 103(j) of the Ethics Act provide: Section 1 103. Restricted activities. (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 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 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -569 This responds to your letter of June 1, 1999, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") imposes any prohibition or restrictions upon a borough council member from simultaneously serving or being employed as a pool manager for the borough. Facts: Amy Evans (Evans) is a member of Derry Borough Council, Westmoreland County. Evans would like to be hired as pool manager, as a Borough employee. The Borough has a population of 2950 as of the last census. Evans has agreed to abstain from all voting with respect to her hiring, as well as any matters relating to the pool or pool manager. Discussion: As a Member of Derry Borough Council, Evans is a "public official" as that term is defined in the Ethics Act and hence Evans is subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Evans, 99 -569 July 6, 1999 Page 2 65 Pa.C.S. §§1103(a), (j). The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: 65 Pa.C.S. §1102. 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. 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. 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. 6, §2. In this case, in order to determine whether a conflict exists, the Borough Code must be reviewed: Evans, 99 -569 July 6, 1999 Page 3 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. As to the above, if a Council member were to accept additional compensation not authorized in law for performing certain duties, such compensation would be considered a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. In particular, if the Borough has a population of 3,000 or more, one could not under Section 1 103(a) of the Ethics Act serve as a Council member and be employed in the Borough. If the Borough's population is 3,000, no prohibition would exist under the Borough Code and therefore such employment would be permitted under Section 1 103(a) of the Ethics Act. Based upon the factual representation that the population of the Borough is under 3,000, there does not appear to be any incompatibility for such service. 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 Member of Derry Borough Council and pool manager. Consequently, such simultaneous service would be permitted within the parameters of Sections 1 103(a) and 1103(j). Evans, 99 -569 July 6, '1999 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member of Derry Borough Council, Westmoreland County, Amy Evans is a "public official" subject to the provisions of the Ethics Act. Evans may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Member of Derry Borough - Council and Pool Manager, 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 1107(11), an 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, provided 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. S. cerely, Vincent J. Dopko Chief Counsel