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HomeMy WebLinkAbout21-503 SilvettiPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Dear Mr. Silvetti: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 3, 2021 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 1â–ºAi167ilca This responds to your letter dated January 5, 2021, received January 11, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission") seeking guidance as to your ability to serve as a member of a municipal authority board. The issue(s) for which you seek guidance have been summarized below: Issue: 1). Does the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., place any prohibitions or restrictions upon you, as a Township Supervisor, from also simultaneously serving as a member of a municipal authority board? Brief Answer. NO. A municipal authority board is a separate governmental entity from the Township, and as such the Ethics Act does not prohibit a Township Supervisor from also simultaneously serving as a member of a municipal authority board. 2). Does the Ethics Act place any prohibitions or restrictions upon you, as a Township Supervisor, from utilizing the authority of your office by participating in actions, including nominations, votes, etc., that will result in your appointment as a member of a municipal authority board? Brief Answer. YES. As a public official, you are prohibited from utilizing the authority of your office which results in a pecuniary (financial) benefit to yourself. Silvetti, 21-503 rruary 3, 2021 Page 2 3). By refusing compensation, are the restrictions placed upon you by the Ethics Act as a public official alleviated? Brief Answer. YES. By refusing compensation, the Commission has previously advised that by eliminating any pecuniary (financial) gain to yourself, you may nominate/vote for your appointment. Facts: You request an advisory from the Commission regarding the above questions based upon the following submitted facts, that may be fairly summarized as follows: You currently serve as the chairperson of the Blair Township (Township), Blair County, Board of Supervisors (Board). The Board consists of three members, and is amongst other duties and responsibilities, charged with the authority to appoint members to the Blair Township Water and Sewer Authority Board (Authority). The Authority was established pursuant the Pennsylvania Municipal Authorities Act, and you indicate that the Authority has existed since prior to your service as a Supervisor. You have stated that upon assuming office as a Supervisor, you noted that the same Authority members had been serving for many years, and that you believed the Authority would benefit from a change in membership composition. At some point during your service as a Supervisor, the Board initiated a process to recruit Township residents to be considered as candidates for appointment to the Authority. Most recently, the chairperson and manager of the Authority have been advocating for the reappointment of long serving Authority board members. As a Supervisor you oppose this. The Board is seeking qualified candidates for consideration, however at this time qualified appointees have not been found. Having no qualified candidates for consideration, you yourself wish to be appointed to the Authority. You believe that you are qualified having previously served for 21 years as the CEO for a large, nonprofit, regional community economic development corporation. As an employee of that entity, you stated that your former employer was involved in various public service and public infrastructure endeavors, including water and sewer projects throughout the region. Based on your employment history, you believe that you are the best qualified individual at this time for appointment to the Authority. You have stated that as a member of the Authority, you are eligible to receive a stipend payment of $100 per month. This amount was authorized by the Board while you served as a Township Supervisor. You have stated that if appointed to the Authority, you have committed to not accepting or receiving the monthly stipend, and that you would serve on the Authority absent compensation. Given the fact that you would be eligible to receive a monthly stipend, the question has arisen as to whether or not you can serve on the Authority simultaneous to your Silvetti, 21-503 rruary 3, 2021 Page 3 service as a Township Supervisor; and whether you can participate, including voting for yourself, as an appointee/candidate to the Authority. The preceding concludes the facts that have been submitted for consideration. 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 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. As a Township Supervisor, you are a public official subject to the provisions of the Ethics Act. If you would be appointed as a Member of the Authority Board, you 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. (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 members of the governing body have cast opposing votes, the memberwho 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), 0). Silvetti, 21-503 rruary 3, 2021 Page 4 The following terms related to Section 1103(a) are defined in the Ethics Act 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. Question 1 — Simultaneous Service: The Supreme Court of Pennsylvania has held that municipal authorities are not "creatures, agents or representatives of the municipalities which organize them; rather, they are independent agencies of the Commonwealth." Commonwealth v. Erie Metro. Transit Auth., 444 Pa. 345, 348, 281 A.2d 882, 884 (1971); Whitemarsh Township Auth. v. Elwert, 413 Pa. 329, 333, 196 A.2d 843, 846 (1964). In applying 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. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service as both a Township Supervisor and a Member of a Municipal Authority. (See Commonwealth v. Lucas, 534 Pa. 293, 632 A.2d 868(1993)). In an instance where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position she/he would be accounting to herself/himself in another position on a continual basis, 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 the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a). In each instance of a conflict of interest, the individual would be required to abstain and, in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 11030) asset forth above. In the instant matter, based upon the facts that have been submitted, there does not appear to be an "inherent conflict" that would preclude simultaneous service as a Silvetti, 21-503 rruary 3, 2021 Page 5 Township Supervisor and as an Authority Board Member. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and11030) of the Ethics Act. Question 2 — Ability to Vote/Nominate Oneself: 1 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. 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 Koslow v. Commonwealth, State Ethics Com., 116 Pa. Commw. 19, 540 A.2d 1374 (1988) the Commonwealth Court found that a township commissioner who cast the deciding ballot appointing himself as a member of the township's municipal authority violated the Ethics Act by doing so. The court found that by receiving $70.00 a month as a member of the municipal authority, the commissioner used his office in violation of §[1103(a)] of the Ethics Act, 65 Pa. C.S. §1103(a). The court held that while the local ordinance authorized compensation to be paid to municipal authority members and there was no law that forbade a township commissioner from also serving on the township municipal authority, a conflict of interests occurred when a public official appointing himself to another public office. Because appellant cast the controlling vote in favor of his appointment, his vote and his appointment resulted in a pecuniary/financial benefit to himself in violation of the Ethics Act. In each instance of a voting conflict, Section 11030) of the Ethics Act requires the public official /public 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. In the event that the required abstention results in the inability of a three (3) member 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 Pavlovic, Opinion 02 -005. You are advised that to the extent you utilize the authority of your office to nominate, appoint, vote, etc. yourself to a compensated public office, you are engaging in a prohibited conflict of interests as defined by the Ethics Act (65 Pa.C.S.§1103(a)). 1 It is noted that the courts of the Commonwealth have long recognized the conflict of interest inherent in a public official appointing himself to another public office. (See McCreary v. Maior, 343 Pa. 355, 359-60, 22 A.2d 686, 688-89 (1941). As early as 1803, in Commonwealth v. Douglass, 1 Bin. 77, 84: the Supreme Court found "[t]hat there is `a virtual unanimity of opinion' among all reasonable men that it is against public policy for a public official to appoint himself to another public office within his gift is beyond all question." Koslow v. Commonwealth, State Ethics Com., 116 Pa. Commw. 19, 22 (Pa. Commw. Ct. May 5, 1988). Silvetti, 21-503 rruary 3, 2021 Page 6 Question 3 — Refusal of Compensation: Within your request you have submitted as a fact that, to the extent you may be appointed to the Authority, you will refuse and/or otherwise not receive any compensation as an Authority member. The Commission has previously advised that Section 1103(a) of the Ethics Act would not prohibit you from voting to appoint yourself to the position of Authority Board Member subject to the condition that you would receive no compensation as an Authority Member or officer. If you would receive no compensation as an Authority Member or officer (such that you would decline any officer compensation to which you might otherwise be entitled), then you would not have a conflict of interest under Section 1103(a) of the Ethics Act as to voting to appoint yourself to the Authority because the requisite element of a private pecuniary(financial) benefit would be lacking. See DiPalma, Advice 04 -606. In an effort to provide a thorough answer, since the Authority is a "political subdivision" and not a "business" as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Board of Supervisors that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See Confidential Opinion, 01 -005; McCarrier, Opinion 98 -008; Warso, Order 974. You are advised that absent a basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in actions, negotiations, or votes on issues involving transactions between the Township and the Authority. Conclusion: As a Supervisor for Blair Township you are a public official subject to the provisions of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. If you would be appointed as a Member of the Blair Township Water and Sewer Authority Board, you would in that capacity also be a public official subject to the provisions of the Ethics Act. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a Township Supervisor and a Member of the Authority Board, subject to the restrictions, conditions and qualifications set forth above. Section 1103(a) of the Ethics Act would not prohibit you from voting to appoint yourself to the position of Authority Board Member subject to the condition that you would receive no compensation as an Authority Member or officer. The propriety of the proposed conduct has only been addressed under the Ethics Silvetti, 21-503 rruary 3, 2021 Page 7 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. 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 actuaHX received at the Commission within thin (30) clays of the date o this vice pursuant to 51 Pa. Code l 13.2(yh). 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. Sincerely, ria D. a isin Chief Co el