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HomeMy WebLinkAbout00-579 CrowleyThomas E. Crowley, Esquire Muffin, Taylor, Flach, Boyer & Paulisick Diamond Park Place, Lower Level 110 East Diamond Street Butler, PA 16001 -5999 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL May 26, 2000 Re: Simultaneous Service; Water Authority Board Member /Chairman; Water Authority Employee. Dear Mr. Crowley: This responds to your letter of April 25, 2000, 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 board member of a township water authority with regard to simultaneously serving as an employee of that authority. Facts: You seek an advisory from the State Ethics Commission on behalf of William Weaver, who serves as a Member and Chairman of the Board of Directors ( "Board ") of the Adams Township Water Authority ( "Water Authority "). You state that the Water Authority is in a critical phase of development. Much of the Township in which the Water Authority operates has no public water service at this time. Moreover, the Township is one of the fastest growing municipalities in Pennsylvania. The Water Authority is in the process of applying for a substantial loan for an anticipated expansion of service on a very large scale. Presently, Mr. Weaver's service to the Water Authority is limited to performing functions as a Board Member /Chairman. Mr. Weaver is not an employee of the Water Authority at this time. However, the Board is considering hiring Mr. Weaver to serve as an employee of the Water Authority in addition to serving as a Member and Chairman of the Board. It is the Board's intention to employ Mr. Weaver for only a short- -but critical -- period of time, during which water service will be initiated by the Water Authority and a major expansion of the Water Authority's scope of coverage will be undertaken. You state that if Mr. Weaver would be appointed as an employee of the Water Authority, his duties would be as follows: managing the Water Authority's daily operations, assisting the Board in preparing for longer term employee appointment, FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -579 William Weaver, 00 -579 May 26, 2000 Page 2 assisting the Board and its legal counsel in obtaining and closing on PennVest Financing, and performing other duties as assigned by the Board. You ask whether, pursuant to the Ethics Act, Mr. Weaver would be permitted to simultaneously serve as a Member /Chairman of the Water Authority and as an employee of the Water Authority. You seek further advice as to the precautions Mr. Weaver and the Board would have to take to avoid violating the Ethics Act if such simultaneous service would be permitted. 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 Member and Chairman of the Board of the Adams Township Water Authority ( "Water Authority "), Mr. Weaver is a "public official" as that term is defined in the Ethics Act and hence Mr. Weaver is subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Sections 1 103(a) and 1103(j) of the Ethics Act provide: § 1103. 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 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 William Weaver, 00 -579 May 26, 2000 Page 3 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(a), (j). The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: § 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. 65 Pa.C.S. §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. 6, §2. In Swick /Aman, Opinion 91 -006, the State Ethics Commission reviewed the same question which you have presented and determined that the Municipality Authorities Act (53 P.S. §§30913, C) does not appear to preclude simultaneous service as a municipal authority board member and employee. However, the Commission's decision that such simultaneous service as an authority board member and employee would be permitted under the Ethics Act was subject to two qualifications. First, the board member could not "use the authority of office" by participating in or voting in favor of his own appointment or in matters concerning his employment. Swick /Aman, supra, at 8. 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Participating in appointing oneself to a compensated position, in the absence of express authority to do so, would constitute a use of authority of office for a private pecuniary benefit, in contravention of Section 1103(a). William Weaver, 00 -579 May 26, 2000 Page 4 Second, the Commission determined that such employment positions would have to be legitimate, rather than a mere machination to enable the authority board members to set their own compensation for duties performed as board members, rather than as bona fide employees. Id. Thus, although authority board members may fix the number of authority employees and may prescribe the powers /duties and compensation of authority employees (53 P.S. § §306 B(g); 309 C), authority members may not be compensated as authority employees for duties which they would properly perform as board members. Within the parameters of Sections 1103(a) and 1103(j) and subject to the conditions, restrictions, and qualifications set forth above, the Ethics Act would not preclude Mr. Weaver from simultaneously serving as a Member and Chairman of the Water Authority and as an employee of the Water Authority. In each instance of a conflict of interest, Mr. Weaver would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) as set forth above. As for your second inquiry, regarding any precautions that the Water Authority Board and Mr. Weaver would have to take to avoid violating the Ethics Act, you are advised that the Water Authority would not be subject to the restrictions of Sections 1103(a) and 1103(j) of the Ethics Act: such restrictions apply to "public officials" and "public employees." Mr. Weaver, as a public official (and most likely a "public employee" in the new employment position) would be required to take the precautions necessary to avoid transgressing the provisions of the Ethics Act as stated above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member and Chairman of the Board of the Adams Township Water Authority ( "Water Authority "), William Weaver is a "public official" subject to the provisions of the Ethics Act. Within the parameters of Sections 1103(a) and 1103(j) and subject to the above conditions, restrictions, and qualifications, the Ethics Act would not preclude Mr. Weaver from simultaneously serving as a Member and Chairman of the Water Authority and as an employee of the Water Authority. In each instance of a conflict of interest, Mr. Weaver would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) as 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 William Weaver, 00 -579 May 26, 2000 Page 5 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. incent J. t opko Chief Counsel