Loading...
HomeMy WebLinkAbout00-556 SaveriMarino Saveri 110 Pennsylvania Avenue Bangor, PA 18013 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL April 3, 2000 Re: Conflict; Public Official /Employee; Member; Borough; Council; Sewer; Authority; Salary. Dear Mr. Saveri: This responds to your letters of February 4, 2000, and February 25, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., presents any prohibition or restrictions upon a borough council member as to receiving compensation for serving on the borough municipal sewer authority. Facts: You are a Member of the Bangor Borough Council ( "Council "). You have recently been appointed as a Member of the Bangor Borough Municipal Sewer Authority ( "Sewer Authority "), for which you will be paid $2,500 annually. You state that the Sewer Authority was originally created by the Borough Council. However, the Sewer Authority currently operates as a separate corporate entity under the Municipal Authorities Act. You are aware that §46104 of the Borough Code prohibits you from receiving dual compensation. You ask whether you may waive your salary as a Borough Council member in order to accept the higher salary as a Sewer Authority Member. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (11), advisories are issued 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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Council Member of Bangor Borough, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. FAX: (717) 787 -0806 • Web Site: www.ethics.statepa.us • e -mail: ethics @state.pa.us 00 -556 Saveri, 00 -556 April 3, 2000 Page 2 Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act 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. Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (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 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 Saveri, 00 -556 April 3, 2000 Page 3 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 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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 Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As to the question of whether you must waive your salary as a Borough C Council on Member in order to accept the salary for the Sewer Authority position, the has determined that if a particular statutory enactment prohibits an official from receiving a financial benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would be contrary to Section 1 103(a) of the Ethics Act. In order iar b unde whether he Ethics e Act, the provisions of the. Municipality "private pecuniary Authorities Act must be reviewed. Members shall hold office until their successors have been appointed, and may succeed themselves, and ... shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities. 53 P.S. §309(B). In order to determine whether such pecuniary benefit is strictly prohibited by law and, therefore, a private pecuniary benefit, the provisions of the Borough Code must also be reviewed: Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve, on any board, commission, b re or b ed or agency uthr zed created by for the may borough, e r pt appointments office created Saveri, 00 -556 April 3, 2000 Page 4 thereunder, but no mayor or councilman shall receive compensation therefor. 53 P.S. §46104. Lichty, Advice 92 -635 concluded that simultaneous service a Council member and an authority board member was permitted by the Borough Code. However, with respect to the compensation question, this advice stated: It is not clear whether a position on the Municipal Authority, which has presumably been created under the Municipality Authorities Act, 53 P.S. §301 et seq., and is a separate governmental body from the Borough Council, would be deemed to be a Borough position. Therefore, while it is clear that the Borough Code would not preclude you from holding both positions, a judicial determination would be required as to whether you could be compensated as an Authority member. Lichty, Advice 92 -635 at 6 (Emphasis in the original). Council members may also serve as authority board members under the Borough Code without transgressing the Ethics Act. However, determining whether such council members may receive compensation as authority.members requires a more in- depth statutory analysis of the Borough Code. The Commission jurisdiction is limited to the Ethics Act and only peripherally involves other laws to determine whether a particular pecuniary benefit is not authorized, or "private." Therefore, until an appropriate judicial forum interprets the relevant portion of the Borough Code, it is not clear whether a council member may be compensated as an authority member. Assuming the appropriate forum decides that compensation is not permitted as per the above quoted prohibition in the Borough Code, a council member who accepts compensation as an authority member would be receiving a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. Assuming, on the other hand, the appropriate forum decides that such compensation is not prohibited by the above quoted provision of the Borough Code, a council member who accepts compensation as an authority member would not be receiving a private pecuniary benefit and would not be contrary to Section 1103(a) of the Ethics Act. The fact that you are willing to forego your compensation as a Borough Council member and accept the higher salary as a Sewer Authority Member will not resolve this issue because the prohibition in the Borough Code quoted above is imposed against the receipt of compensation as to the other position on a " - -- board, commission, bureau or other agency created by or for the borough - - -." Borough Code. supra. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As a Council Member for Bangor Borough, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. §1101 et seq. Under Section 1103(a) of the Ethics Act, a borough council member who is also an authority board member may or may not be allowed to accept compensation as a member or officer of the municipal authority depending upon the appropriate judicial forum determining whether such compensation is Saveri, 00 -556 April 3, 2000 Page 5 permitted under the Borough Code, adressed under toe Ethics Act. the propriety of the proposed conduct has only been 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 1. 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. rely, Vincent J. Dopko Chief Counsel