HomeMy WebLinkAbout90-012 ConfidentialI. Issue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Helena G. Hughes, Chair
Robert W. Brown, Vice Chair
Dennis C. Harrington
James M. Howley
Daneen E. Reese
DATE DECIDED: Mav 17, 1990
DATE MAILED: May 29, 1990
Re: Conflict, Simultaneous Service, Municipal Authority Member,
Municipal Authority Officer, Governing Body, Appeal of Advice.
This Confidential Opinion is issued pursuant to your appeal of the
Confidential Advice of Counsel, 90 -527, issued on March 27, 1990.
Whether the Public Official and Employee Ethics Law imposes any
prohibition or restrictions upon a municipal authority board member
from being employed as an officer of that municipal authority.
II. Factual Basis for Determination:
90
The issue which you present was originally processed as a request
of an advice of counsel and as a result on March 27, 1990 Advice of
Counsel, 90 -527 was issued. That advice concluded that you as a board
member of the A Authority were precluded from simultaneously serving as
a board member of that authority and as a compensated officer of the
authority under Section 3(a) of the Ethics Law. You were further
advised that Sections 3(b) and (c) of the Ethics ,Law prohibit an
understanding whereby members would reciprocate by voting in favor of
each other's appointments to offices within that authority.
On April 10, 1990, this Commission received your letter dated
April 9, 1990, wherein you appealed the Advice. By letter of May 2,
1990 you were notified that your appeal would go before the full
Commission and of the date, time and location of the executive session.
Page 2
Since you have not specified in your appeal of advice the nature of
your objections thereto, we shall consider de novo the issue which you
have presented.
You are a member of the Board of Directors of the Joint Municipal
Sewage Authority known as the A Authority, hereinafter Authority. You
have submitted a copy of Article II, Section I of the by -laws of the
Authority which provide for the following offices therein:
a) Chairman of the Board;
b) Vice - chairman of the Board;
c) Secretary;
d) Treasurer;
e) Assistant Secretary Treasurer;
f) Chairman of the Personnel Committee;
g) Chairman of the Finance and Budge Committee;
h) Chairman of the Sludge Committee;
i) Chairman of the Insurance Committee;
j) Chairman of the Grounds and Maintenance Committee; and
k) Chairman of the Legal and Engineering Services Committee.
Aside from the Office of Assistant Secretary Treasurer, all of the
listed offices must be members of the Board of Authority and no member
shall hold more than one office. Article II Section 9 of the by -laws
further provide that the above officers shall be elected at a'annual
meeting of the Board of Authority and shall hold office for a period of
one year or until a successor is elected or qualified. The
compensation of the officers of the Authority is determined by
resolution pursuant to Article II Section 12 which is adopted at the
annual meeting of the Board subsequent to the election of officers.
You then reference contemplated action at the February 24, 1990 meeting
of the Board relative to the by -laws and refer to Sections 4(b) and
7(c) of the Municipality Authorities Act. You then posed four
questions under your original advisory request: may an Authority Board
Member receive compensation as an officer of the Authority; may the
Municipal Authority Member vote in favor of his election to an
authority office and, if not permitted to vote, what reason must be
proffered for the abstention; may the Authority Board Member vote for
the resolution establishing the compensation for officers of the
Authority and, if not, what reason must be given for his abstention and
finally may the compensation for each office be established by
individual resolution assuming that the Municipal Authority Member may
receive compensation as an officer of the Authority.
In a submitted memorandum, you assert that you are "entitled to
the protections set forth in Section 7(11)" because the Advice of
Counsel was not issued within 21 working days. You also argue that the
Municipality Authorities Act specifically allows for board members to
appoint officers, fix their compensation and further appoint members of
the board to such offices.
Page 3
III. Discussion:
As a member of a A Authority, you are a "public official " -as that
term is defined under the Public Official and Employee Ethics Law. 65
P.S. Section 402; 51 Pa. Code Section 1.1. Dice, Opinion 85 -021. As
such, you are subject to the provisions of the Ethics Law and the
restrictions therein are applicable to you.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public employee
shall engage in conduct that constitutes a conflict
of interest.
The following terms are defined under the Ethics Law:
"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. "Conflict" or
"conflict of interest" 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
or 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 3(b) and 3(c) of the Ethics Law provide in part that no
person shall offer to a public official /employee anything of monetary
value and no public official /employee shall solicit or accept any thing
of monetary value based upon the understanding that the vote, official
action, or judgement of the public official /employee would be
influenced thereby. Reference is made to these provisions of the law
not to imply that there has or will be any transgression thereof but
merely to provide a complete response to the question presented.
Page 4
Regarding your first argument that "protection" is accorded
because the Advice was not issued in 21 days, Section 7(11) of the
Ethics Law provides:
Section 7. Powers and duties of the commission.
In addition to other powers and duties
prescribed by law, the commission shall:
(11) Provide written advice to any
person or the appointing authority or
employer of such person, upon their
request with respect to such person's
duties under this act. Such advice shall
be provided within 21 working days of the
request, provided that the time may be
extended for good cause. It shall be a
complete defense in any enforcement
proceeding initiated by the commission,
and evidence of good faith conduct in any
other civil or criminal proceeding, if
the requester, at least 21 working days
prior to the alleged violation,
requested written advice from the
commission in good faith, disclosed
truthfully all the material facts and
committed the acts complained of either
in reliance on the advice or because of
the failure of the commission to provide
advice within 21 days of the request or
such later extended time. The person
requesting the advice may, however,
require that the advice shall contain
such deletions and changes as shall be
necessary to protect the identity of the
persons involved.
In the instant matter we note that additional information was
requested by counsel. Although a response was received, it raised
legal argument rather than supplied the requested factual information.
The Ethics Law provides that the "21 working days" deadline may be
extended for good cause. Since additional information was requested
and not supplied, good cause existed for the delay. Accordingly, we
find that under these circumstances no "protection" exists.
As to the second argument that board members may serve in
authority office positions, the relevant provisions of the Municipality
Authorities Act of 1945, P.L. 382, as amended, 53 P.S. 301 et. seq.
provide as follows:
Page 5
B. Members shall hold office until their
successors have been appointed, and may succeed
themselves, and, except members of the boards of
Authorities organized or created by a school
district or school districts, shall receive such
salaries as may be determined by the governing body
or bodies of the municipality or municipalities,
but none of such salaries shall be increased or
diminished by such governing body or bodies during
the term for which the member receiving the same
shall have been appointed. 53 P.S. Section 309B.
C. A majority of the members shall constitute a
quorum of the board for the purpose of organizing
the Authority and conducting the business thereof
and for all other purposes, and all action may be
taken by vote of a majority of the members present,
unless in any case the by -laws shall require a
larger number. The board shall have full
authority to manage the properties and business of
the Authority and to prescribe, amend and repeal
by -laws, rules and regulations governing the manner
in which the business of the Authority may be
conducted, and the powers granted to it may be
exercised and embodied. The board shall fix and
determine the number of officers, agents and
employees of the Authority and their respective
powers, duties and compensation and may appoint to
such office or officers any member of the board
with such powers, duties and compensation as the
board may deem proper. 53 P.S. Section 309C.
We may only address questions regarding the duties and
responsibilities of public officials within the purview of the Public
Official and Employees Ethics Act. If, however, certain provisions of
other laws impact upon the Ethics Law or the Ethics Law accords
jurisdiction in relation to other provisions of law, then this
Commission may be required to interpret such provisions of law. See
Maier, Opinion 85 -020.
If a particular statutory enactment prohibits an official's
receipt of a particular benefit, then that official's receipt of such a
prohibited benefit, in and through the authority of office, would also
be in contravention of the Ethics Law. Hoak /McCutcheon v. State Ethics
Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983). This
Commission has been called upon, on various occasions, to determine
whether a financial gain or private pecuniary benefit is strictly
prohibited by law and to that end, the provisions of the enabling
legislation of the governmental body in question have been reviewed.
Page 6
In applying the provisions of Section 3(a) of the Ethics Law
quoted above to the instant matter, there are two provisions of the
Municipality Authorities Act which have relevance. In particular, the
General Assembly in Section 7B, 53 P.S. Section 309B requires that the
compensation for members of the Authority must be set by the governing
body. This is a clear expression of intent that the Authority Board
Members may not set their own compensation. However, in Subsection C,
the Municipality Authorities Act does allow for a majority of the
members of the Authority to fix and determine the number of officers
and their compensation in those offices. If the Board of the Authority
creates offices for the members of the Board so that the Board in
effect sets the compensation for themselves, such action would clearly
be in contravention of Section 7B of the Municipality Authorities Act.
Therefore, if the receipt of such compensation would be in
contravention to the Municipality Authorities Act, supra, then such
would be prohibited by Section 3(a) of the Ethics Law because the
action of creating all of these offices and setting the compensation
would be clearly a use of authority of office to obtain a private
pecuniary benefit for the members which is not provided and impliedly
prohibited by the Municipality Authorities Act.
In resolving the question of whether you may sit as a compensated
officer of the authority, it is necessary for us to know the specific
factual circumstances relative to the creation and operation of
authority offices. However, instead of appearing or submitting this
information, you merely proffer certain legal arguments.
Since you have the responsibility of moving forward with your
appeal of Advice of Counsel by supplying the factual circumstances and
legal arguments in support thereof and since you have not done so in
this case, we do not have sufficient information before us to overturn
the advice and therefore must affirm said advice.
IV. Conclusion:
On an appeal from an Advice of Counsel which concluded that a
member of a certain municipal authority could not simultaneously serve
as an authority board member and compensated "officer" of the
authority, the requestor has the burden of going forward with his
appeal by supplying sufficient factual information in order to overturn
the advice. Based upon an insufficiency of information, the Advice of
Counsel is affirmed.
Pursuant to Section 7(9)(i), this Opinion is a complete defense in
any enforcement proceeding initiated by the Commission, and evidence of
good faith conduct in any 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.
Page 7
Finally, any person may request the Commission to reconsider its
Opinion. The reconsideration request must be received at this
Commission within fifteen days of the mailing date of this Opinion.
The person requesting reconsideration should present a detailed
explanation setting forth the reasons why the Opinion requires
reconsideration.
By t - Commission
elena G. Hughes,
Chair