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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
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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.
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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
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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).
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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
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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).
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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
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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