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HomeMy WebLinkAbout02-511 MillerPerry L. Miller R.D. #4, Box 235 Greensburg, PA 15601 Re: Simultaneous Service; Township; Recreation Board Member; Auditor; Municipal Authority Board Member. Dear Mr. Miller: ADVICE OF COUNSEL January 30, 2002 02 -511 This responds to your letters of December 28, 2001, and January 2, 2002, 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 township recreation board member from simultaneously serving as an auditor for the township and a municipal authority board member. Facts: For the past several years, you have served as a member of the Salem Township Recreation Board ( "Recreation Board "). The Salem Township Recreation Board consists of seven members, five of whom are appointed by the Salem Township Board of Supervisors, and two of whom are appointed by the Greensburg Salem School Board. You state that you were appointed to the Recreation Board by the Greensburg Salem School Board. In November 2001, you were elected to a six -year term as a Salem Township Auditor. You state that the Township auditors do not audit the Township's financial books which, at the present time, are audited by a professional firm. You indicate, however, that this practice may change now that a newly elected supervisor has taken office. The Salem Township Supervisors have recently formed a municipal authority, which will have as one of its responsibilities, the development of a township park on land recently purchased by the Township. You state that the Supervisors wish to appoint you as one of the members of the authority. You pose the following questions. 1. Whether you may simultaneously serve as a member of the Salem Township Recreation Board and a Salem Township Auditor; and Miller, 02 -511 January 30, 2002 Page 2 2. Whether you may serve as a board member of the municipal authority while you serve as a member of the Salem Township Recreation Board and a Salem Township Auditor. 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 a Salem Township Recreation Board Member and a Salem Township Auditor, 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. 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 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. 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. Miller, 02 -511 January 30, 2002 Page 3 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 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 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, in order to determine whether a particular pecuniary benefit or financial gain is prohibited by law, the provisions of the Second Class Township Code, 53 P.S. § 65404, must be reviewed: § 65404. Auditors (a) Except when vacancies create shorter terms, at each municipal election, the electors of each township shall elect one auditor to serve for a term of six years from the first Monday of January after the election. Auditors shall reside in the township from which elected and shall have resided in that township continuously for at least one year immediately preceding their election. (b) No auditor shall at the same time hold any other elective or appointive township office or position or be an employe of the township for which he has been elected or appointed. (c) In the event that there concurrently exists two or more vacancies for the position of township auditor, a person shall be ineligible to seek nomination or election to fill more than one such vacancy. 53 P.S. § 65404 (Emphasis added). The above appears to forbid simultaneous service in the positions in question. Any financial gain or pecuniary benefit that the public official /public employee would receive while simultaneously holding these positions would be a gain other than compensation provided for by law. Kinq, supra. Therefore, simultaneous service in the positions of Salem Township Recreation Board Member and Salem Township Auditor would be contrary to Section 1103(a) of the Ethics Act to the extent a pecuniary benefit or financial gain would be received that would be unauthorized based upon the foregoing incompatibility provision. Given that you would be precluded from simultaneously serving as a Salem Township Recreation Board Member and Salem Township Auditor, the question of whether either of these positions would be incompatible with the position of municipal authority board member shall now be addressed. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions of Salem Township Recreation Board Member and municipal authority board member or Salem Township Auditor and municipal authority board member. As to the latter, it is assumed that the municipal authority was created under the Municipal Authorities Act of 1945 and is a separate governmental body from Salem Township. Miller, 02 -511 January 30, 2002 Page 4 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. If the situation would ever arise, you as an Auditor for Salem Township, or as a Salem Township Recreation Board Member, would have a conflict and could not participate as to matters of the Municipal Authority that would financially impact or involve yourself. 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 Salem Township Recreation Board Member and municipal authority board member or a Salem Township Auditor and municipal authority board member. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: As a Salem Township Recreation Board Member and a Salem Township Auditor, you are a "public official" subject to the provisions of the Ethics Act. You may not, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of a Salem Township Recreation Board Member and Salem Township Auditor. Assuming the Salem Township Board of Supervisors appoints you to serve as a member of the municipal authority board, and the municipal authority is a separate governmental body created under the Municipal Authorities Act of 1945, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Salem Township Recreation Board Member and municipal authority board member or Salem Township Auditor and municipal authority board member, subject to the restrictions, conditions and qualifications 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), 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 Miller, 02 -511 January 30, 2002 Page 5 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