HomeMy WebLinkAbout01-608 BlyRichard Bly
317 W. Hemlock Avenue
Kane, PA 16735
ADVICE OF COUNSEL
December 4, 2001
Re: Simultaneous Service; Borough Council
Member; Sewer Line Inspection Services
Dear Mr. Bly:
This responds to your letter of November
from the State Ethics Commission.
01 -608
Member and Borough Authority Board
to Authority; Contract.
5, 2001, by which you requested advice
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") imposes
any prohibition or restrictions upon a borough council member from simultaneously serving
as a borough authority member.
Facts: You are currently a member of the Kane Borough Council. You are
considering serving as a member of the Kane Borough Authority, a sewer authority. The
Kane Borough Authority owns the sewer system in Kane and a portion of the surrounding
sewer system in Wetmore Township. You state that the Kane Borough Authority was
established pursuant to the Municipalities Authority Act.
You pose the following questions.
1. Whether you may simultaneously serve on Borough Council and the
Authority Board; and
2. If simultaneous service is not prohibited, whether you may provide sewer line
inspection services to the Kane Borough Authority and receive compensation from the
Authority.
Discussion: As a Kane Borough Council Member, 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.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted Activities
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December 4, 2001
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(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 pertaining 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.
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
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December 4, 2001
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arrangement between the State or political subdivision as one
party and a public official or public employee as the other
party, concerning his expense, reimbursement, salary, wage,
retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
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. There does not
appear to be any statutorily - declared incompatibility precluding simultaneous service in the
positions in question.
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.
Your specific inquiries shall now be addressed.
With regard to your first question, 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 Kane Borough Council and a Member of the Kane Borough Authority.
Consequently, such simultaneous service would be permitted within the parameters of
Sections 1103(a) and 1103(j).
With regard to your second question, Section 1103(f) does not operate to make
contracting with the governmental body permissible where it is otherwise prohibited.
Rather, where a public official /public employee, his spouse or child, or a business with
which he, his spouse or child is associated, is otherwise appropriately contracting with the
governmental body, or subcontracting with any person who has been awarded a contract
with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires
that an "open and public process" be observed as to the contract with the governmental
body. Pursuant to Section 1103(f), an "open and public process" includes:
(1) prior public notice of the employment or contracting possibility;
(2) sufficient time for a reasonable and prudent competitor /applicant to be able
to prepare and present an application or proposal;
(3) public disclosure of all applications or proposals considered; and
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December 4, 2001
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(4) public disclosure of the contract awarded and offered and accepted.
Section 1103(f) of the Ethics Act also requires that the public official /employee may
not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
Where Section 1103(f) applies, its requirements must be strictly observed. Under
the facts that you have submitted, the governmental body with which you would be
associated would be the Kane Borough Authority. Accordingly, any contract between you
and Kane Borough Authority, if over $500, would be subject to the restrictions of Section
1103(f).
Further, as an Authority Board Member, you would have a conflict under Section
1103(a) of the Ethics Act and could not participate as to matters pertaining to any contract
you would have with the Authority. In each instance of a conflict, you would be required to
observe the disclosure requirements of Section 1103(j) of the Ethics Act.
Parenthetically, although the contracting in question would not be prohibited under
the Ethics Act provided the requirements of Sections 1103(a), 1103(f), and 1103(j) are
satisfied, a problem may exist as to such contracting under the Municipality Authorities Act.
In the instant situation, the Municipality Authorities Act provides as follows:
§5614. Competition in award of contracts
(e) Conflict of interest. —No member of the authority or
officer or employee of the authority may directly or indirectly be
a party to or be interested in any contract or agreement with
the authority if the contract or agreement establishes liability
against or indebtedness of the authority. Any contract or
agreement made in violation of this subsection is void, and no
action may be maintained on the agreement against the
authority... .
53 Pa. C. S. § 5614.
Since such contracting may be prohibited by the above quoted provision of the
Municipality Authorities Act, and since the State Ethics Commission does not administer or
enforce that Act, it is suggested that you seek legal advice in that regard.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the Municipality
Authorities Act.
Conclusion: As a Member of Kane Borough Council, you are a "public official"
subject to the provisions of the Ethics Law. You may, consistent with Section 1103(a) of
the Ethics Act, simultaneously serve in the positions of Kane Borough Council Member and
Kane Borough Authority Board Member, subject to the restrictions, conditions and
qualifications set forth above. Within the parameters of Sections 1103(a), 1103(j), and
1103(f) and subject to the conditions, restrictions, and qualifications set forth above, the
Ethics Act would not prohibit you, an Authority Board Member, from receiving
compensation from the Authority for providing sewer line inspection services to the
Authority. Since contracting with the Authority may be prohibited by the Municipality
Authorities Act, it is suggested that you seek legal advice in that regard. Lastly, the
propriety of the proposed course of conduct has only been addressed under the Ethics
Act.
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December 4, 2001
Page 5
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