HomeMy WebLinkAbout01-515 McCrayJulia M. McCray
P.O. Box 306
Tionesta, PA 16353
ADVICE OF COUNSEL
February 13, 2001
01 -515
Re: Conflict; Public Official /Employee; Simultaneous Service; Borough; Administrative
Assistant; Council Member; Vote; Class /Subclass; Candidate
Dear Ms. McCray:
This responds to your letter of January 11, 2001, 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., presents any prohibition or restrictions upon a borough
administrative assistant, who may run for borough council, and if elected, simultaneously
serving as a borough council member.
Facts: You are currently the Administrative Assistant for Tionesta Borough, Forest
ounty. You have submitted a job description, which is incorporated herein by reference.
In the May 2001, primary election, you wish to run for the Tionesta Borough
Council, which consists of seven members. You state, "I understand that section 1104 of
the Borough Code allows me to do so in a Borough of Tess than 3,000." You further
state that Tionesta Borough has a population of 734. You add that the Borough
Administrator holds the offices of Secretary, Treasurer, Manager, Pension Trustee and
Zoning Officer.
You list the following as your duties as Administrative Assistant:
1. Handling accounts payable, accounts receivable, payroll, utility billing, bank
deposits and transfers;
2. Taking and typing minutes of Council meetings;
3. Overseeing the operation and maintenance of the computer systems; and
4. Purchasing office supplies.
McCray, 01 -515
February 13, 2001
Page 2
You state that you also supervise one employee in the office.
Some of your more significant job duties as set forth in your job description include
the following:
1. Preparing and entering fund transfers on computer;
2. Co- signing checks;
3. Preparing end -of -month quarterly and yearly reports;
4. Reconciling bank statements;
5. Preparing miscellaneous billings;
6. Collecting information for local and state audits;
7. Advising the Administrator and /or Council of financial needs or concerns;
8. Posting penalties for water bills;
9. Preparing State and Federal reports on a monthly and quarterly basis and
paying taxes on monthly and quarterly basis;
10. Preparing and mailing W -2 forms;
11. Billing the Recreation Board for its employees and miscellaneous
expenses;
12. Overseeing the part -time office employee with regard to training,
assignments and scheduling;
13. Preparing miscellaneous financial reports for the Administrator; and
14. In the absence of the Administrator, answering questions from the public
regarding ordinances and zoning.
Given the above facts, you ask what conflicts you would have if you would hold the
positions of Borough Administrative Assistant and Borough Council Member
simultaneously. You also ask what matters would require you to abstain from voting.
Finally, you ask whether you would be required to exclude yourself from any discussions
during meetings.
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.
As Administrative Assistant for Tionesta Borough, you are a public employee as
that term is defined in the Ethics Act, and hence you are subject to the provisions of that
Act. This conclusion is based upon the job description, which when reviewed on an
objective basis, indicates clearly that the power exists to take or recommend official
action of a non - ministerial nature with respect to one or more of the following: contracting;
procurement; planning; inspecting; administering or monitoring grants; leasing;
McCray, 01 -515
February 13, 2001
Page 3
regulating; auditing; or other activities where the economic impact is greater than de
minimis on the interests of another person.
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.
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
McCray, 01 -515
February 13, 2001
Page 4
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 question of whether you,
as the Borough Administrative Assistant, would be permitted to simultaneously serve as a
member of Borough Council, 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.
A conflict exists under the Ethics Act where a pecuniary benefit or financial gain
results from holding incompatible positions 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 the same,
through the authority of public office, is unauthorized in law and therefore, is contrary to
Section 1103(a) of the Ethics Act.
In this case, in order to determine whether simultaneous service in the positions in
question is precluded, the Borough Code, 52 P.S. § 45101 et seq. ( "Code ") must be
reviewed.
53 P.S. §46104.
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.
McCray, 01 -515
February 13, 2001
Page 5
Pursuant to Section 46104 of the Code, if a borough council member were to
accept compensation not authorized in law for performing certain duties, such
compensation would be considered a private pecuniary benefit contrary to section
1103(a) of the Ethics Act. In boroughs having a population of 3,000 or more, Section
1103(a) would prohibit a council member from also serving as a borough employee. You
state that the population of Tionesta Borough is 734. Therefore, assuming you would run
for a seat on borough council and win the election, it would appear that, for purposes of
applying the Ethics Act to your circumstances, your receipt of compensation as the
Borough Administrative Assistant would not be prohibited under Section 1103(a) of the
Ethics Act.
Turning to your specific question as to what matters you would be required to
abstain from voting on as a Council member, you are advised that 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. Generally speaking, Section 1103(a) of the Ethics
Act would restrict you as a Council member from voting on matters before Borough
Council that would result in a financial gain to yourself, such as voting to give the
Administrative Assistant a raise when you are the Administrative Assistant. In such
instances of a conflict of interest, you would be required to abstain and observe the
disclosure requirements of Section 1103(j) of the Ethics Act as set forth above.
Not only would Section 1103(a) of the Ethics Act prohibit you from voting on
matters that would result in a financial gain to yourself, you would also be precluded from
participating in discussions related to such matters. This is true because the use of
authority of office is more than the mere mechanics of voting. It encompasses all of the
tasks needed to perform the functions of a given position. See, Juliante, Order No. 809.
Use of authority of office includes, for example, discussing, conferring with others, and
lobbying for a particular benefit.
Section 1103(a) of the Ethics Act would not preclude you from participating in
matters that would financially impact upon you if you would fall within the exclusion to the
statutory definition of "conflict of interest" known as the class /subclass exclusion. In order
for that exclusion to apply, you would have to be in a class /subclass consisting of more
than just one person and would have to be affected to the same degree as the other
members of the class /subclass. See, Van Rensler, Opinion 90 -017.
Under the facts that you have submitted, it would appear that you are the only
Administrative Assistant in the Borough. Thus, in matters before the Borough that would
have a financial impact upon you alone as the Administrative Assistant, the
class /subclass exception to the definition of conflict of interest would not apply, and you,
as a Council member, would have to abstain and observe the disclosure requirements of
Section 1103(j) of the Ethics Act.
On the other hand, where a matter would come before Borough Council that would
financially impact all Borough employees" to the same degree, such as an across -the-
board salary increase, and you, as an Administrative Assistant, would be considered to
be one of two or more Borough employees, the class /subclass exclusion to the definition
of conflict of interest would apply, and you would not be precluded from voting on that
matter.
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.
McCray, 01 -515
February 13, 2001
Page 6
Conclusion: As Administrative Assistant for Tionesta Borough, you are a public
employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics
Act'), 65 Pa.C.S. §1101 et seq. Assuming you run for a seat on Borough Council and
win the election, subject to the restrictions and qualifications noted above, you may,
consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of
Borough Administrative Assistant and Borough Council Member for Tionesta Borough,
which has a population of under 3,000. Assuming you are the only Administrative
Assistant, the class /subclass exception to the definition of conflict of interest would not
apply and you, as a Council member, would have a conflict of interest as to matters
related to the Administrative Assistant position that would result in a financial gain to
yourself. In each instance of a conflict, you would be required to abstain from
participation and to fully satisfy the disclosure requirements of Section 1103(j) of the
Ethics Act as set forth above. On the other hand, where a matter would come before the
Borough that would financially impact all Borough employees" to the same degree, such
as an across - the -board salary increase, and the Administrative Assistant would be
considered to be one of two or more Borough employees, the class /subclass exclusion to
the definition of conflict of interest would apply, and you, as a Council member, would not
be precluded from voting on or participating in that matter. 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