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HomeMy WebLinkAbout00-633 BraunRuss Braun Sewage Enforcement Officer 426 West Theresia Road St. Marys, PA 15857 Dear Mr. Braun: ADVICE OF COUNSEL December 27, 2000 Based upon the foregoing facts, you pose the following questions. 00 -633 Re: Conflict; Public Official /Employee; Township; Sewage Enforcement Officer; Code Administrator; Appointment /Reappointment; Planning Commission; Planning Module; Subdivision /Land Development; Simultaneous Service; Vote. This responds to your letter of November 24, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. §1101 et seq., imposes any prohibition or restrictions upon a township sewage enforcement officer with regard to simultaneously serving as a member of that township's planning commission or as a member of a county planning commission, or serving in more than one municipality; and whether a member of a county planning commission, which is primarily an advisory board, is subject to the Ethics Act, and if so, whether such member may vote on projects in which he is involved and answer questions about that project from other planning commission members. Facts: You reside in Fox Township, Elk County where you are employed part -time as the Sewage Enforcement Officer ("SEO "). You are also employed full -time as the SEO and Code Administrator in Jones Township. In addition, you represent Fox Township in your capacity as an appointed member of the Elk County Planning Commission, to which you are considering reappointment. You state that you are also considering requesting an appointment to the Fox Township Planning Commission. Since your original appointment to the Elk County Planning Commission, you have designed small flow sewage treatment facilities for neighboring municipalities that require the Elk County Planning Commission to review Planning Modules (4 -b) in order to secure permits from the Department of Environmental Protection ( "DEP "). Braun, 00 -633 December 27, 2000 Page 2 1. Whether the appointed members of the Elk County Planning Commission, a primarily advisory board to the County Commissioners, are subject to the Ethics Act; 2. If the members of the Elk County Planning Commission are subject to the Ethics Act, when Planning Modules are presented before the Elk County Planning Commission, whether you must abstain from voting on projects in which you are involved or that you submit. As to such projects, whether you may answer questions from other members of the Planning Commission. 3. Whether you would have a conflict of interest if you would simultaneously serve as a municipal SEO and a member of the municipal planning commission or a member of a county planning commission when, as the SEO, you would conduct the required soils testing for the developer and review subdivision /land development plans prior to such plans being submitted to the planning commission. Further, whether a conflict would exist if you would serve as the SEO in more than one municipality. 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. It is further noted that, pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §1107(10), (11), an opinion /advice may given only as to prospective ( "future ") conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As the Sewage Enforcement Officer ( "SEO ") for Fox and Jones Townships, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. The term "public official" is defined in the Ethics Act as follows: §1102. Definitions. "Public official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. §1102. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: Braun, 00 -633 December 27, 2000 Page 3 (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. (111) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolu- tions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII)The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. Braun, 00 -633 December 27, 2000 Page 4 (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi - judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code §11.1. Section 1103(a) of the Ethics Act provides: $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 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to Braun, 00 -633 December 27, 2000 Page 5 imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(j) of the Ethics Act provides as follows: $1103. Restricted activities. (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 each instance of a conflict, Section 1103(j) requires the public official /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 or supervisor. In the event that the required abstention results in the inability of the 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, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, 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. Having established the above principles, the questions you have posed shall now be addressed. With regard to the first question as to whether the members of the Elk County Planning Commission are subject to the Ethics Act, you are advised that to the extent you are seeking an advisory as to individuals other than yourself, such inquiry is a third party Braun, 00 -633 December 27, 2000 Page 6 request which cannot be addressed herein. However, to the extent that you are asking about your own conduct, your inquiry may and shall be addressed. In applying the definition of "public official" and the related regulatory criteria to the question that you have posed, it is initially noted that planning commissions are "planning agencies" as defined in the Pennsylvania Municipalities Planning Code, 53 P.S. §10107. The powers and duties of planning agencies are generally defined at 53 P.S. §10209.1. However, to some extent, the powers and duties of planning commissions may vary. See, e.q. 53 P.S. §10201. You do not specify the exact nature of the Elk County Planning Commission, but only state that it is "primarily an advisory board to the County Commissioners." Since the exact nature of the Elk County Planning Commission is unknown, only general advice may be given. If the Elk County Planning Commission is a purely advisory body, in your capacity as a member of that Planning Commission, you would not be considered a "public official" as that term is defined in the Ethics Act. The only provisions of the Ethics Act that would apply to you would be Sections 1103(b) and 1103(c) quoted above which apply to everyone. However, if the Elk County Planning Commission is not a purely advisory body, in your capacity as a member of that Planning Commission, you would be considered a "public official" as that term is defined in the Ethics Act. Hence, you would be subject to the provisions of the Ethics Act. With regard to your second question, assuming that as a member of the Elk County Planning Commission, you would be considered a "public official," you would have a conflict as to projects before the Commission in which you would be involved or that you would submit. Hence, you could not vote on such projects and would be required to abstain from participation in accordance with Section p 103(j) of the Ethics Act. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office, as for example, discussing, conferring with others, and lobbying for a particular result. See, Juliante, Order No. 809. In each instance of a conflict of interest, you would also be required to satisfy the disclosure requirements of Section 1103(j) as set forth above. As to whether you could answer questions about such projects from other members of the Elk County Planning Commission, you are advised that you would be permitted to do so, so long as you would clearly and unequivocally indicate that you would be acting in your private capacity rather than in your public capacity as a Planning Commission member. As general guidance, it is suggested that you would follow the customary Planning Commission protocol observed by any other private citizen participating in a Planning Commission meeting to definitively indicate that your participation would be as a private citizen. Your final question is twofold. First, you ask whether you would have a conflict of interest if you would simultaneously serve as a municipal SEO and a member of the municipal planning commission or a member of a county planning commission. Second, you ask whether you would have a conflict if you would serve as the SEO in more than one municipality. In addressing your final question, it is noted that you currently serve as the SEO in Fox and Jones Townships and a member of the Elk County Planning Commission. To the extent that you are inquiring as to the propriety of simultaneous service in the foregoing positions, as noted above, such "past conduct" cannot be addressed herein. However, to the extent that you are inquiring as to prospective simultaneous service, in particular, service as the SEO for Fox Township and a member of the Fox Township Planning Commission, you are advised as follows. Braun, 00 -633 December 27, 2000 Page 7 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 §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. Kinq, Opinion No. 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 offices simultaneously. The Commission has determined 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 hence, contrary to Section 1103(a) of the Ethics Act. In this case, the only provision in law expressly limiting planning commission members from serving in officer or employee positions in the same municipality is found in the Municipalities Planning Code, 53 P.S. §10101 et seq. ( "MPC "). Section 10205 of the MPC provides: §10205. Membership All of the members of the planning commission shall be residents of the municipality. On all planning commissions appointed pursuant to this act, a certain number of the members, designated as citizen members shall not be officers or employees of the municipality. On a commission of three members at least two shall be citizen members. On a commission of four or five members at least three shall be citizen members. On a commission of either six or seven members at least five shall be citizen members, and on commissions of either eight or nine members at least six shall be citizen members. 53 P.S. §10205 (Emphasis added). The foregoing would appear to limit a township SEO from serving on the township planning commission as follows. On a three - member planning commission, at least two members must be citizen members; therefore, only one member may be an elected official or township employee. On a four or five - member planning commission, at least three members must be citizen members; therefore, only one member on a four - member board and no more than two members on a five - member board may be elected officials or township employees. On a six or seven - member planning commission, at least five members must be citizen members; therefore only one member on a six - member board and no more than two members on a seven - member board may be elected officials or township employees. On an eight or nine - member planning commission, at least six members must be citizen members; therefore, no more than two members on an eight - member board and no more than three members on a nine - member board may be elected officials or township employees. If you would hold a seat on a township planning commission that was designated for a citizen member and would also receive compensation as that township's SEO, any financial gain or pecuniary benefit that you would receive while simultaneously holding these positions would be a gain other than compensation provided by law. Kinq, Opinion 85 -025. Under such a scenario, you could not simultaneously serve in such positions. As for whether a township SEO would have a conflict if he would simultaneously serve on a county planning commission or if he would serve as the SEO for more than one municipality, you are advised as follows. Braun, 00 -633 December 27, 2000 Page 8 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) of the Ethics Act 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 a township SEO and a member of a county planning commission or an SEO for more than one municipality. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) and 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As the Sewage Enforcement Officer for Fox and Jones Townships, you are a public official subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. §1101 et seq. With regard to whether as a member of the Elk County Planning Commission, you are a public official subject to the Ethics Act, only general advice may be given since the submitted facts to not specify the exact nature of that Commission. If the Elk County Planning Commission is a purely advisory body, in your capacity as a member of that Planning Commission, you would not be considered a "public official" as that term is defined in the Ethics Act. The only provisions of the Ethics Act that would apply to you would be Sections 1103(b) and 1103(c) quoted above which apply to everyone. However, if the Elk County Planning Commission is not a purely advisory body, in your capacity as a member of that Planning Commission, you would be considered a "public official" as that term is defined in the Ethics Act. Hence, you would be subject to the provisions of the Ethics Act. Assuming that as a member of the Elk County Planning Commission, you would be considered to be a "public official," you would have a conflict as to projects before the Planning Commission that would involve you or that you would submit. You could not participate in any Planning Commission action regarding such projects, and would be required to abstain and observe the disclosure requirements in accordance with Section 1103(j) of the Ethics Act. You would be permitted to answer questions about such projects from other members of the Elk County Planning Commission, so long as you would clearly and unequivocally indicate that you would be acting in your private capacity rather than in your public capacity as a Planning Commission member. You would not have a conflict if you would serve as the SEO for a township and a member of that township's planning commission as long as such service would fall within the limitations of Section 10205 of the Municipalities Planning Code as detailed above. You would not have a conflict if you would simultaneously serve as a township SEO and Braun, 00 -633 December 27, 2000 Page 9 a member of a county planning commission or if you would serve as the SEO for more than one municipality. Lastly, the propriety of the proposed 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 §13.20. 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