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HomeMy WebLinkAbout20-527 Loperfito-ToneyPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL June 12, 2020 To the Requester: Mr. Larry D. Loperfito, Esquire Geary, Loperfito & Generelli, LLC Dear Mr. Loperfito: 20-527 This responds to your letter dated May 6, 2020 (postmarked May 18, 2020, received May 26, 2020), by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission'). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 ITS. § 1101 et sew., would impose prohibitions or restrictions upon an individual serving as a Member of the Board of Directors of the Municipal Sanitary Authority of the City of New Kensington with regard to simultaneously serving as a Member of the Board of Directors of the Municipal Water Authority of the City of New Kensington. Facts: You have been authorized by Phillip G. Toney ("Mr. Toney") to request an a visoryfrom the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The City of New Kensington ("Cit " established both the Municipal Sanitary Authority of the City of New Kensington �-City Sanitary Authority") and the Municipal Water Authority of the City of New Kensington ("City Water Authority"), which are separate and distinct entities. City Council has the authority to make appointments to the Board of Directors of the City Sanitary Authorit "City Sanitary Authority Board") and the Board of Directors of the City Water Authority ity Water Authority Board"). Mr. Toney has been a Member of the City Sanitary Authority Board since 2014. Mr. Toney receives compensation in the amount of $100.00 per month for serving on the City Sanitary Authority Board. Mr. Toney is a former employee of the City Water Authority, and he has been asked to consider accepting an appointment to the City Water Authority Board. If Mr. Toney would be appointed as a Member of the City Water Authority Board, he would be paid the amount of $50.00 per month for serving on the City Water Authority Board. Loperfito, 20-527 June 12, 2020 Page 2 The City Water Authority conducts all billing activity for the City Sanitary Authority in combined billing statements. You state that if Mr. Toney would be a Member of both the City Sanitary Authority Board and the City Water Authority Board, he would not receive any income from combined billing activity for the City Sanitary Authority and the City Water Authority, and he would abstain from any official action with regard to any mutually identified contractual arrangement. The narrow question that you have posed is whether the Ethics Act would permit Mr. Toney to simultaneously serve as a Member of the City Sanitary Authority Board and a Member of the City Water Authority Board. Discussion: It is initially noted that pursuant to Sections 1107(10) and 11 07(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. It is further initially noted that this Advice is limited to addressing the narrow question posed. As a Member of the City Sanitary Authority Board, Mr. Toney is a public official subject to the provisions of the Ethics Act. If Mr. Toney would be appointed as a Member of the City Water Authority Board, he would in that capacity also be a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) 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. 0) 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 members of the governing body have cast opposing votes, the Loperfito, 20-527 June 12, 2020 Page 3 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 pertaining 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 famil 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. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, 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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In applying the above provisions of the Ethics Act to the question presented, 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. There does not appear to be any statutorily -declared incompatibility that would preclude Mr. Toney from simultaneously serving as a Member of the City Sanitary Authority Board and a Member of the City Water Authority Board. Turning to the question of conflict of interest, 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, Loperfito, 20-527 June 12, 2020 Page 4 there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for thepublic official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. 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. However, in each instance of a conflict of interest, the individual would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(�') of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude Mr. Toney from simultaneously serving as a Member of the City Sanitary Authority Board and a Member of the City Water Authority Board. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 11030) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) the City of New Kensington City") established both the Municipal Sanitary Authority of the City of New Kensington "City Sanitary Authority" and the Municipal Water Authorit of the City of New Kensington ("City Water Authority"), which are separate and d stinct entities; (2) City CounciF has the authority to make appointments to the Board of Directors of the City Sanitary Authority ("City Sanitary Authority Board") and the Board of Directors of the City Water Authority (" ity Water Authority Board"4; (3) Phillip G. Toney ("Mr. Toney") has been a Member of the City Sanitary Authority oard since 2014; (4) Mr. Toney receives compensation in the amount of $100.00 per month for serving on the City Sanitary Authority Board; (5) Mr. Toney is a former employee of the City Water Authority, and he has been asked to consider accepting an appointment to the City Water Authority Board; (6) if Mr. Toney would be appointed as a Member of the City Water Authority Board, he would be paid the amount of $50.00 per month for serving on the City Water Authority Board; (7) the City Water Authority conducts all billing activity for the City Sanitary Authority in combined billing statements; and (8) if Mr. Toney would be a Member of both the City Sanitary Authority Board and the City Water Authority Board, he would not receive any income from combined billing activity for the City Sanitary Authority and the City Water Authority, and he would abstain from any official action with regard to any mutually identified contractual arrangement, you are advised as follows. As a Member of the City Sanitary Authority Board, Mr. Toney is a public official subject to the provisions of the Public Official and Emplo ee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec.. If Mr. Toney would be appointedyas a Member of the City Water Authority Board, he would in that capacity also be a public official subject to the provisions of the Ethics Act. Subject to the restrictions, conditions, and qualifications set forth above, Mr. Toney may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Member of the City Sanitary Authority Board and a Member of the City Water Authority Board. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Loperfito, 20-527 June 12, 2020 Page 5 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 at the Commission within thirt (30 days of the pursuant to 51 Pa. Code j 13.2(yh). The appeal ma Commission by hand delivery, United States mail, by FAX transmission f717-787-0806). Failure to A the Commission within thirty (30) days may resul the appeal. Sincerely, /;�- Robin M. Hittie Chief Counsel be actuaII14 received date of this Advice y be received at the delivery service, or e such an appeal at C in the dismissal of