HomeMy WebLinkAbout02-546 DowneyJames A. Downey, III, Esquire
Begley, Carlin & Mandio, LLP
680 Middletown Boulevard
P.O. Box 308
Langhorne, PA 19047 -0308
Dear Mr. Downey:
ADVICE OF COUNSEL
April 4, 2002
02 -546
Re: Conflict; Public Official /Employee; Member; Joint Municipal Authority; Borough;
Council Member; Accepting Salary as Municipal Authority Board Member.
This responds to your letters of February 18, 2002, and March 4, 2002, 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 members of a joint
municipal authority board who also are borough council members as to accepting salaries
as authority board members.
Facts: As Solicitor for the Lower Bucks County Joint Municipal Authority
( "Authority "), you seek an advisory as to the conduct of two Authority Board Members.
You have submitted facts, which may be fairly summarized as follows.
The Authority, a water and sewer authority, was created in 1952 by Tullytown
Borough ( "Borough') and Bristol Township ( "Township "). Three Authority Board Members
were appointed by the Borough and three Authority Board Members were appointed by the
Township. Two of the three Authority Board Members appointed by the Borough also
serve as Borough Council Members.
You state that the two Authority Board Members who serve as Borough Council
Members ( "Authority Board Members ") did not vote for their own appointment or vote to set
the salaries of the Authority Board, which salaries were established by the Borough and
Township prior to their appointment. You ask whether the Authority Board Members may
receive the salaries for serving on the Authority Board.
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
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April 4, 2002
Page 2
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.
The two Members of the Lower Bucks County Joint Municipal Authority ( "Authority ")
who also serve as Borough Council Members ( "Authority Board Members ") are public
officials as that term is defined in the Ethics Act, and hence they are subject to the
provisions of that Act.
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
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
Downey, 02 -546
April 4, 2002
Page 3
(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.
The Commission has determined that if a particular statutory enactment prohibits a
public official from receiving a financial benefit, then that public official's receipt of such a
prohibited benefit, through the authority of public office, would also be a use of the
authority of office contrary to Section 1103(a) of the Ethics Act.
In order to determine whether the receipt of compensation by the Authority Board
Members would constitute a prohibited "private" pecuniary benefits under the Ethics Act,
the provisions of the Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq. and the
Borough Code, 53 P.S. § 45101 et seq. must be reviewed.
The Municipality Authorities Act provides in pertinent part as follows:
§ 5610. Governing body
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April 4, 2002
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(D) SUCCESSOR.— Members shall hold office until their successors have
been appointed and may succeed themselves and, ... shall receive such
salaries as may be determined by the governing body of the municipality,
but no salaries shall be increased or diminished by a governing body during
the term for which the member shall have been appointed.
53 Pa.C.S. § 5610(D).
The Borough Code also provides as follows:
§ 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.
53 P.S. § 46104.
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 the Authority Board Members 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 the Authority Board Members may be compensated
for serving on the Authority Board.
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. Given that the position of
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April 4, 2002
Page 5
Authority Board Member is a compensated position, the Authority Board Members may not
use the authority of their offices as Borough Council Members to participate in any
matter(s) that would involve a financial gain to themselves as Authority Board Members.
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.
Conclusion: The two Members of the Lower Bucks County Joint Municipal
Authority ( "Authority ") who also serve as Borough Council Members ( "Authority Board
Members ") are public officials subject to the provisions of the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Authority Board Members may,
consistent with Section 1103(a) of the Ethics Act, simultaneously serve in their positions on
the Authority and on the Tullytown Borough Council, 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 given the fact that the position of
Member of the Authority is a compensated position, the Authority Board Members may not
use the authority of their offices as Borough Council Members to participate in any matter
that would involve a financial gain as to themselves as Board Members of the Authority.
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) clays 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