Loading...
HomeMy WebLinkAbout00-601 MascaraMark E. Mascara, Esquire 25 West Beau Street Washington, PA 15301 Re: Simultaneous Service; Borough; Mayor; Sewage Authority; Member. Dear Mr. Mascara: ADVICE OF COUNSEL August 22, 2000 00 -601 This responds to your letter of July 20, 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 borough mayor from simultaneously serving or being employed as a member of the borough sewer authority. Facts: As the Solicitor for the Borough of New Eagle, Pennsylvania ( "Borough "), you have been authorized by the New Eagle Borough Council ( "Borough Council ") to seek an advisory as to whether the Ethics Act would prohibit Mayor Thomas McGinty ( "McGinty ") from being appointed to the New Eagle Borough Sewage Authority "Sewage Authority "). You state that McGinty would like to hold both offices simultaneously. The Borough has no police force at this time and has no plans in the immediate future to re -hire Borough policemen. Pursuant to the Borough Code, the Mayor has the authority to vote to break a tie at Borough meetings. You suspect that in the future, the Borough will certainly vote on matters concerning the Sewage Authority given the interrelationship between the employees and the appointment of members. 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Mascara, 00 -601 August 22, 2000 Page 2 As the Mayor of New Eagle Borough, Thomas McGinty ( "McGinty ") is a "public official" as that term is defined in the Ethics Act and hence McGinty is subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1. Sections 1103(a) and 1103(j) of the Ethics Act provide: Section 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 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: Section 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. Mascara, 00 -601 August 22, 2000 Page 3 "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 this case, in order to determine whether a conflict exists, the Borough Code must be reviewed: Appointments; incompatible offices Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employe of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. . . . Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. 53 P.S. §46104. Turning to the question of conflict of interest, 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. 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, there would be an inherent conflict (See, Johnson, Opinion 86 -004). 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). 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, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as Mayor of Mascara, 00 -601 August 22, 2000 Page 4 New Eagle Borough and a Member of the New Eagle Borough Sewage Authority. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). While the Ethics Act would not prohibit or restrict McGinty from simultaneously serving as the Borough Mayor and an Authority Member, the question would remain as to whether he could be compensated for his service as an Authority Member under the Borough Code. In this regard, the facts which you have submitted do not specify whether McGinty would receive compensation as an Authority Member. Further, the submitted facts do not specify whether the Sewage Authority has been created under the Municipalities Authorities Act, 53 P.S. §301 et se ., and is therefore a separate governmental body from the Borough or whether the ewage Authority is part of the Borough. In either event, assuming the position on the Sewage Authority is a paid position, the above quoted language in the Borough Code prohibiting the mayor and council members from receiving compensation may prohibit McGinty from receiving a financial benefit as an Authority Member. Lichty, Advice 92 -635 concluded that simultaneous service as a council member and authority board member was permitted by the Borough Code. However, with respect to the compensation question, this advice stated: It is not clear whether a position on the Municipal Authority, which has presumably been created under the Municipality Authorities Act, 53 P.S. §301 et seq., and is a separate governmental body from the Borough Council, would be deemed to be a Borough position. Therefore, while it is clear that the Borough Code would not preclude you from holding both positions, a judicial determination would be required as to whether you could be compensated as an Authority member. Lichty, Advice 92 -635 at 6 (Emphasis in the original). In light of Lichty, supra, determining whether a borough mayor may receive compensation as an authority member requires a more in -depth statutory analysis of the Borough Code. The Commission jurisdiction is limited to the Ethics Act and only peripherally involves other laws to determine whether a particular pecuniary benefit is not authorized or "private." Therefore, until an appropriate judicial forum interprets the relevant portion of the Borough Code, it is not clear whether a mayor may be compensated as an authority member. Assuming the appropriate forum decides that compensation is not permitted as per the above quoted prohibition in the Borough Code, a mayor who accepts compensation as an authority member would be receiving a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. Assuming the appropriate forum decides that compensation is permitted under the Borough Code, a mayor who accepts compensation as an authority member would not be receiving a private pecuniary benefit. Under this scenario, assuming the position of Member of the New Eagle Borough Authority is a compensated position, McGinty may not use the authority of office to vote to break a tie as to his own appointment to such position or as to any matter that would involve a financial gain as to himself as a Board Member of the Authority. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As the Mayor of New Eagle Borough, Thomas McGinty ( "McGinty ") is a "public official" subject to the provisions of the Ethics Act. McGinty Mascara, 00 -601 August 22, 2000 Page 5 may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Mayor of New Eagle Borough and a Member of the New Eagle Borough Sewage Authority, subject to the restrictions, conditions and qualifications set forth above. Under Section 1103(a) of the Ethics Act, a borough mayor who is also an authority board member may or may not be allowed to accept compensation as a member or officer of the municipal authority depending upon the appropriate judicial forum determining whether such compensation is permitted under the Borough Code, 53 P.S. §46104. Assuming the appropriate forum decides that compensation is permitted under the Borough Code, and further assuming the position of Member of the New Eagle Borough Authority is a compensated position, McGinty may not use the authority of office to vote to break a tie as to his own appointment to such position or as to any matter that would involve a financial gain as to himself as a Board Member of the Authority. 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 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. Sincerely, Vincent J. Dopko Chief Counsel