Loading...
HomeMy WebLinkAbout21-514 WorrallPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Mr. Alfred Worrall Dear Mr. Worrall: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 wEBSITE: wmv.ethics.ya.2ov ADVICE OF COUNSEL April 5, 2021 21-514 This responds to your letter dated February 25, 2021, received March 8, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Would the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 etseq., permit you to receive compensation for serving as the Tax Collector for Mount Penn Borough (Borough) while simultaneously serving as a compensated Member of the Mount Penn Borough Municipal Authority Board (Authority Board)? Brief Answer: YES. The Ethics Act would allow you to receive compensation for serving simultaneously as both the Borough Tax Collector and as a compensated Authority Board Member. Facts: You have served as a Member of the Authority Board since 2006. You receive compensation in the amount of $750.00 per year for serving on the Authority Board. In February 2021, Borough Council appointed you to serve as the Borough Tax Collector. You state that you could receive compensation in an amount ranging from $20,000.00 to $25,000.00 per year for serving as the Borough Tax Collector. You ask whether the Ethics Act would permit you to receive compensation for serving as the Borough Tax Collector while simultaneously serving in a compensated position as a Member of the Authority Board. Worrall, 21-514 April 5, 2021 Page 2 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. In each of your public positions as the Borough Tax Collector and an Authority Board Member, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) 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), 0). Worrall, 21-514 April 5, 2021 Page 3 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C. S. § 1102, 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 use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Having established the above general principles, you are advised that the Ethics Act would permit you to receive compensation for serving as the Borough Tax Collector while simultaneously serving in a compensated position as an Authority Board Member, subject to the condition that you would not use the authority of either of your public positions, or confidential information Worrall, 21-514 April 5, 2021 Page 4 accessed or received as a result of being in either of your public positions, to obtain compensation not provided for by law in contravention of Section 1103(a) of the Ethics Act.' Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: In each of your public positions as the Borough Tax Collector and an Authority Board Member, you area public official subject to the provisions of the Ethics Act. The Ethics Act would permit you to receive compensation for serving as the Borough Tax Collector while simultaneously serving in a compensated position as an Authority Board Member, subject to the condition that you would not use the authority of either of your public positions, or confidential information accessed or received as a result of being in either of your public positions, to obtain compensation not provided for bylaw in contravention of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Respectfully, rian D. Ja isi Chief Coun 1 It is noted that there does not appear to be any statutorily -declared incompatibility that would preclude simultaneous service in the positions of Borough Tax Collector and Authority Board Member. It is further noted that there does not appear to be an inherent conflict that would preclude simultaneous service in the aforesaid positions. Cf. McCain, Opinion 02-009.