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Home My WebLink About97-538 BrownSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 7, 1 997 Richard L. Campbell, Esquire Miller, Kistler, Campbell, Miller & Williams, Inc. 1500 South Atherton Street State College, PA 16801 -6295 97 -538 Re: Conflict, Public Official /Employee, Joint Municipal Authority, Chairman, Compensation, Sewer Service Tap -On. Dear Mr. Campbell: This responds to your letter of January 28, 1997 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Chairman of a Joint Municipal Authority from accepting a free sewer service tap -on provided by the Authority as compensation for his services in reorganizing the Authority office. Facts: You represent the Spring- Benner - Walker Joint Authority (Authority), a municipal authority located in Centre County, and have been authorized by George M. Brown, Jr., (Brown), the Authority Chairman, to request an advisory on his behalf. Brown recently retired from his full -time profession which enabled him to devote a substantial amount of time to the Authority business. Brown detailed the services he has provided to the Authority in a letter dated January 30, 1997 which you have submitted and which is incorporated herein by reference. Brown states that on or about November, 1996, the Board requested that he, as Authority Chairman, spend time in the Authority office to ascertain problems that had caused some discrepancies in the manner in which Authority business was conducted, and to recommend possible solutions. Since that time, the office has been reorganized, a time clock and time card system have been installed, customer listings and correspondence files have been reviewed, and the Authority is in the process of computerizing the complete accounting system. Brown expects that more work will be needed. The Authority recently extended sewer service to an area which includes Brown's residence. In consideration and in exchange for Brown's services, the CamobeII /Brown, 97 -538 March 7, 1997 Page 2 Authority wishes to compensate Brown by providing a free tap -on for his personal residence to the Authority line. The tap -on is valued at $2,200. You request an advisory as to the application of the Ethics Law to these circumstances. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(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 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member and Chairman of the Spring- Benner - Walker Joint Authority (Authority), Brown is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. Section 3(j) of the Ethics Law provides as follows: Camobell /Brown, 97 -538 March 7, 1997 Page 3 Section 3. Restricted activities (j) 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. If a conflict exists, Section 3(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 applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, 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. As a Member of the Authority, Brown's compensation is set by the body which appoints him. 53 P.S. §309B. As an officer of the Authority, his compensation is set by the Authority Board. 53 P.S. § §306B, 309C. Any compensation beyond these authorized amounts would be compensation not authorized in law and thus would constitute a private pecuniary benefit in contravention of Section 3(a) of the Ethics Law. Even though you have indicated that it is the Authority that wishes to compensate Brown, rather than Brown seeking such compensation, the acquiescence of Brown in accepting such unauthorized compensation would, under these circumstances, transgress Section 3(a) of the Ethics Law. Thus, pursuant to Section 3(a) of the Ethics Law, the proposed compensation to Brown of providing a free tap -on for his personal residence to the Authority line would constitute compensation that is Camobell/Brown 97 -538 March 7, 1997 Page 4 not authorized in law and that would be a private pecuniary benefit in contravention of Section 3(a). The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As Chairman for Spring- Benner - Walker Joint Authority (Authority), Brown is a public official subject to the provisions of the Ethics Law. Given that the compensation of Authority Members is set by their appointing bodies, and the compensation of Authority officers is set by the Authority Board, the additional proposed compensation to Brown of providing a free tap -on for his personal residence to the Authority line in consideration and in exchange for services which he has provided at the Authority office would constitute a private pecuniary benefit in contravention of Section 3(a) of the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(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, providing 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 1. 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. incerely, , g Vincent J.'Dopko Chief Counsel