HomeMy WebLinkAbout00-617 WalshRobert Walsh
1131 Uncas Street
Danielsville, PA 18038
ADVICE OF COUNSEL
October 18, 2000
00 -617
Re: Simultaneous Service; Conflict; Township Supervisor; Sewage Enforcement Officer.
Dear Mr. Walsh:
This responds to your letter of September 13, 2000, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act imposes any prohibition
or restrictions upon a township supervisor with regard to simultaneously serving as the
township's sewage enforcement officer.
Facts: As a state - certified sewage enforcement officer ( "SEO ") and the sole
proprietor of Blue Mountain Percolation Services ( "Blue Mountain "), you seek an advisory
from the State Ethics Commission. You have submitted facts which may be fairly
summarized as follows.
Your business provides SEO services to local municipalities. You also provide
consulting services to municipalities that do not retain you as their SEO.
You reside in a Second Class Township ( "the Township ") which has three elected
Supervisors. The Township reappoints you annually as its SEO. You wish to run for the
position of Township Supervisor. If elected, you wish to continue to serve as the
Township's appointed SEO.
You state that as the Township's SEO, you are considered to be a subcontractor,
because the fees that Blue Mountain receives are for specific services that you render
according to an adopted fee schedule. You state that you receive a 1099 statement but do
not receive any benefits.
You pose 3 questions for review.
The first question is whether you could simultaneously serve as a Township
Supervisor and as the Township's appointed SEO.
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October 18, 2000
Page 2
The other two questions are only to be answered if the answer to the first question
is in the affirmative.
Your second question seeks clarification as to areas that would pose potential
conflicts of interest for you.
You state your view that as a Township Supervisor, you would have a conflict of
interest and would have to abstain from voting to reappoint yourself to the position of
Township SEO. You state your assumptions that given that the Board of Supervisors is a
three - member board, you could only be appointed by a vote of 2 -0, and that if the vote
would be 1 -1 with you abstaining, you could not be reappointed as the Township's SEO.
You note that the SEO is actively involved in township planning. For example, after
you review subdivision plans and are satisfied that such plans meet certain applicable
requirements, you ask the Township Board of Supervisors for signed approval for DEP
Planning Modules. The DEP Planning Modules are then forwarded to DEP for approval.
You state that as the SEO, you would review the sewage related aspects of the subdivision
planning module and would ask for a motion to approve same.
Also in the area of planning, you ask whether you would have a conflict as to
updating the Township's Comprehensive Plan or Act 537 Sewage Facilities Plan.
Your third and final question is whether, as the Township's SEO, you could maintain
your status as a subcontractor or would have to become a salaried Township employee.
Discussion: If you would be elected to the position of Township Supervisor, you
would in that capacity be a "public official" subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "). 65 Pa.C.S. §1102; 51 Pa. Code §11.1.
Section 1103(a) of the Ethics Act provides:
Section 1103. Restricted Activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. §1103(a).
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
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October 18, 2000
Page 3
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.
Section 1103(j) of the Ethics Act provides:
(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(j).
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. Although the State
Ethics Commission does not have the express statutory jurisdiction to interpret such other
laws, it may review the Ethics Act to determine that a conflict exists based upon the
statutory incompatibility. King, Opinion 85 -025.
A conflict of interest exists under the Ethics Act where a pecuniary benefit or
financial gain (such as salary, benefits, and the like) is derived as a result of holding
incompatible positions simultaneously. The Commission has stated that if a particular
statutory enactment prohibits an official from receiving a particular pecuniary benefit or
financial gain, then that official's receipt of same, through the authority of public office, is
unauthorized in law and therefore, contrary to Section 1103(a) of the Ethics Act.
In this case, the applicable statutes to be reviewed include the Second Class
Township Code and the Pennsylvania Sewage Facilities Act. The Second Class Township
Code provides, in pertinent part, as follows:
§ 65403. Supervisors
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October 18, 2000
Page 4
(b) Except as otherwise provided in this act, no
supervisor shall at the same time hold any other elective or
appointive township office or position. Nothing in this
subsection shall prohibit a supervisor from being a member of a
township planning commission created under the act of July 31,
1968 (P.L. 805, No. 247), known as the "Pennsylvania
Municipalities Planning Code."
53 P.S. §65403(b) (Emphasis added).
§ 65602. Organization meeting; appointment of secretary
and treasurer
(c) The board of supervisors may appoint a supervisor to
be employed as roadmaster, laborer, secretary, treasurer,
assistant secretary, assistant treasurer or in any employe
capacity not otherwise prohibited by this or any other act.
53 P.S. §65602 (Emphasis added).
It is clear from the face of the above provisions of the Second Class Township Code
that a Township Supervisor may be appointed to any Township employee position where
such is not otherwise prohibited by law.
The Pennsylvania Sewage Facilities Act provides, in pertinent part, as follows:
§750.2. Definitions
As used in this act:
"Local agency" means a municipality, or any combination
thereof acting cooperatively or jointly under the laws of the
Commonwealth, county, county department of health or joint
county department of health.
"Municipality" means a city, town, township, borough or
home rule municipality other than a county.
"Sewage enforcement officer" means the official of the
local agency who issues and reviews permit applications and
conducts such investigations and inspections as are
necessary to implement the act and the rules and regulations
thereunder.
35 P.S. §750.2 (Emphasis added).
§750.8. Powers and duties of local agencies
(b) Each local agency in addition to the powers and duties
conferred upon it by existing law shall have the power and the
duty:
(1) To employ an adequate number of sewage
enforcement officers or contract with individuals, firms or
corporations to adequately perform the services of
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October 18, 2000
Page 5
sewage enforcement officers to administer the provisions of
section 7 of this act within the time periods set forth in this act
and in accordance with the rules and regulations of the
department. No person shall be employed or contracted as
a sewage enforcement officer unless said person has been
certified by the department pursuant to standards set by the
Environmental Quality Board. No person shall be employed
or contracted as a sewage enforcement officer to administer
the provisions of section 7 of this act with respect to a
community or an individual sewage system for which he was or
is the contractor. In such a case, the local agency shall
employ or contract with a certified enforcement officer from
an adjoining local agency to administer the provisions of
section 7 of this act with respect to the particular individual or
community sewage system.
35 P.S. §750.8(b)(1) (Emphasis added).
It is clear from the face of the above provisions of the Pennsylvania Sewage
Facilities Act that a township SEO is an official of the township which may either be an
employee of the township or an independent contractor.
Finally, in the context of Section 602(c) of the Second Class Township Code, there
does not appear to be any provision of law expressly stating that a township supervisor
may not be employed as an SEO within the same township.
Thus, in response to your first question, you are advised as follows. Based upon a
review of the above provisions of the Second Class Township Code and the Pennsylvania
Sewage Facilities Act, you could, without transgressing the Ethics Act, simultaneously
serve as a Township Supervisor and as a Sewage Enforcement Officer for the same
Township to the extent the Sewage Enforcement Officer position which you would hold
would be an employment position within the Township.
Your third question as to whether you could maintain your status as a subcontractor
or would have to become a salaried Township employee may not be addressed because it
would require going beyond the face of the above provisions to an interpretation of laws
other than the Ethics Act.
Turning to your remaining question as to "areas" that could pose a conflict of
interest for you, you are advised as follows.
First, contrary to your assumptions outlined in the Facts above, you would not be
precluded from voting as a Township Supervisor as to your own employment as the
Township's Sewage Enforcement Officer. This is because your Township has a three -
member Board of Supervisors, and the Second Class Township Code provides:
§65602. Organization meeting; appointment of
secretary and treasurer
(a) . . . With regard to boards of supervisors which are
designated as three - member boards, any supervisor who is to
be considered by the board for any appointed township
position or for employment by the township as authorized by
law shall not be excluded from voting on the issue of such
appointment or employment. Action taken by a supervisor
shall be deemed to be within the scope of authority as a
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October 18, 2000
Page 6
supervisor and shall not be deemed to constitute an illegal or
an improper conflict of interest.
53 P.S. §65602(a).
As for your general request for clarification as to potential areas of conflict, and your
involvement in planning specifically, the facts which you have submitted are insufficient to
enable a determination of whether in any given instance you would have a conflict of
interest. Therefore, this Advice must be limited to providing the following general guidance
regarding conflicts of interest.
Subject to certain exceptions delineated in the definition of "conflict" or "conflict of
interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a
public official /public employee to use 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. In order
for a violation of Section 1103(a) to be found by the State Ethics Commission, each of the
above elements must be established by clear and convincing evidence. 65 Pa.C.S. §1108.
However, "intent" is not a requisite element for a violation of Section 1103(a) of the Ethics
Act. See, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987). Thus, a
violation of Section 1103(a) of the Ethics Act may be found even if the public official /public
employee did not intend to violate the Act. In each instance of a conflict of interest, the
public official /public employee would be required to abstain fully and to fully satisfy the
disclosure requirements of Section 1103(j) set forth above.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: If elected as a Township Supervisor, you would in that capacity be a
"public official" subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "). Based upon a review of the above provisions of the Second Class
Township Code and the Pennsylvania Sewage Facilities Act, you could, without
transgressing the Ethics Act, simultaneously serve as a Township Supervisor and as a
Sewage Enforcement Officer for the same Township to the extent the Sewage Enforcement
Officer position which you would hold would be an employment position within the
Township. Your question as to whether you could maintain your status as a subcontractor
or would have to become a salaried Township employee may not be addressed because it
would require going beyond the face of the above provisions to an interpretation of laws
other than the Ethics Act.
Because your Township has a three - member Board of Supervisors, you would not
be precluded from voting as a Township Supervisor as to your own employment as the
Township's Sewage Enforcement Officer. See, 53 P.S. §65602(a).
As for other areas of potential conflicts of interest, based upon the limited submitted
facts, this Advice is limited to providing general guidance as to conflicts of interest.
Subject to certain exceptions delineated in the statutory definition of "conflict" or "conflict of
interest" above, it is a conflict of interest under Section 1103(a) of the Ethics Act for a
public official /public employee to use 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. In order
for a violation of Section 1103(a) to be found by the State Ethics Commission, each of the
above elements must be established by clear and convincing evidence. However, "intent"
is not a requisite element for a violation of Section 1103(a) of the Ethics Act. In each
instance of a conflict of interest, a public official /public employee would be required to
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October 18, 2000
Page 7
abstain fully and to fully satisfy the disclosure requirements of Section 1103(j) set forth
above.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Pursuant to Section 1107(11), this 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