HomeMy WebLinkAbout01-549 SassJohn S. Sass, Jr.
223 Hill Street
Curwensville, PA 16833
ADVICE OF COUNSEL
May 8, 2001
Sections 1103(a) and 1103(j) of the Ethics Act provide:
01 -549
Re: Simultaneous Service, Member; Municipal Authority; Borough Council.
Dear Mr. Sass:
This responds to your letter of April 7, 2001, 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 municipal authority board member from
simultaneously serving as a borough council member.
Facts: You currently serve as a Board Member of the Curwensville Municipal
Authority. You state that you have filed a petition to run for a seat on the Curwensville
Borough Council.
Members of the community have questioned whether you may serve in both public
positions at the same time. You have posed the question of simultaneous service to the
Pennsylvania State Association of Boroughs ( "PSAB "). PSAB's Director of Research wrote
to you on March 30, 2001 advising you that she could not respond to your inquiry because
the Curwensville Municipal Authority is not a member of PSAB, whose research services
are available only to dues paying members. You have submitted a copy of PSAB's letter,
which is incorporated herein by reference.
You ask whether you would have a conflict of interest if you would simultaneously
serve as a Member of the Curwensville Municipal Authority and a Member of the
Curwensville Borough Council.
Discussion: As a Board Member of the Curwensville Municipal Authority, you are a
"public official" as that term is defined in the Ethics Act and hence you are subject to the
provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1.
Sass, Jr., 01 -549
May 9, 2001
Page 2
$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:
$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.
Sass, Jr., 01 -549
May 9, 2001
Page 3
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 a Member of
the Curwensville Municipal Authority and a Member of the Curwensville Borough Council.
Consequently, such simultaneous service would be permitted within the parameters of
Sections 1103(a) and 1103(j).
Sass, Jr., 01 -549
May 9, 2001
Page 4
While the Ethics Act would not prohibit or restrict you from simultaneously serving
as a Member of the Curwensville Municipal Authority and a Member of the Curwensville
Borough Council, the question would remain as to whether you could be compensated for
your service as an Authority Member under the Borough Code. In this regard, the facts
which you have submitted do not specify whether you, in fact, receive compensation as an
Authority Member. Further, the submitted facts do not specify whether the Curwensville
Municipal Authority has been created under the Municipality Authorities Act of 1945, 53
P.S. §301 et seq., and is therefore a separate governmental body from Curwensville
Borough or whether the Authority is part of the Borough. In either event, assuming the
position on the Authority is a paid position, the above quoted language in the Borough
Code prohibiting the council members from receiving compensation may prohibit you 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 you, as a member of the Curwensville
Municipal Authority, may receive compensation requires a more in -depth statutory analysis
of the Borough Code. The Commission's 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 you 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 council member who would accept
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 council member who would accept compensation as an authority member
would not be receiving a private pecuniary benefit. Under this scenario, assuming the
position of Member of the Curwensville Municipal Authority is a compensated position, you
may not use the authority of office as a Borough Council Member to participate in any
matter that would involve a financial gain to yourself as a Board Member of the Authority.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As a Board Member of the Curwensville Municipal Authority, you are a
"public official" subject to the provisions of the Ethics Act. You may, consistent with
Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Board Member
of the Curwensville Municipal Authority and Member of the Curwensville Borough Council,
Sass, Jr., 01 -549
May 9, 2001
Page 5
subject to the restrictions, conditions and qualifications set forth above. Under Section
1103(a) of the Ethics Act, a borough council member who is also an authority board
member may or may not be allowed to accept compensation as a member 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 Curwensville Municipal Authority is a
compensated position, you may not use the authority of your office as a Borough Council
Member to participate in any matter that would involve a financial gain as to yourself 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), 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