HomeMy WebLinkAbout00-567 KristobakDonald J. McCue, Esquire
McCue & Husband
Colonial Building
813 Blackstone Road
Connellsville, PA 15425 -2999
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
April 18, 2000
00 -567
Re: Simultaneous Service, Municipal Authority Board Member and Auditor.
Dear Mr. McCue:
This responds to your letters of February 4, 2000 and March 14, 2000, 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 Municipal Authority Board Member from
simultaneously serving or being employed as a Second Class Township Auditor.
Facts: As Solicitor for Dunbar Township Municipal Authority, you seek an
advisory on behalf of Joseph Kristobak (Kristobak), who has been a member of the
Board of the Dunbar Township Municipal Authority for twenty to twenty -five years.
In 1999, following Kristobak's election to the position of Auditor for Dunbar
Township, which is a second class township, a question has arisen as to whether the
positions of Municipal Authority Board Member and Township Auditor are compatible.
You state that you have done some research and understand that the Second
Class Township Code, 53 P.S. §65403(b), provides that no Auditor shall, at the same
time, hold any other elective or appointed township office or position of employment
in the township for which he has been elected or appointed. After referencing 53 P.S.
§55520 which relates to auditors of first class townships and Commonwealth ex rel
Starner v. Menninger, 35 Pa. D &C 2nd 689 (1964), you believe that since the Code
does not apply to Municipal Authority members, there would be no prohibition in
serving simultaneously as an Auditor and a member of the Municipal Authority.
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).
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state -pa.us
McCue, 00 -567
April 18, 2000
Page 2
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As a Municipal Authority Board Member for Dunbar Township, Kristobak is a
"public official" as that term is defined in the Ethics Act and hence Kristobak is subject
to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code § 1 1.1.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
Section 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
The
defined as
(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.
. §§1103(a), (j).
following terms that pertain to conflicts of interest under the Ethics Act are
follows:
Section 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
McCue, 00 -567
April 18, 2000
Page 3
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. 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 1 103(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
Municipal Authority Board Member and Auditor. Consequently, such simultaneous
service would be permitted within the parameters of Sections 1103(a) and 1103(j),
subject to the following two qualifications. First, it is assumed that the Dunbar
Township Municipal Authority was created under the Municipal Authorities Act of
1945 and is a separate governmental body from the township. Second, if the situation
would ever arise, Kristobak as Auditor for Dunbar Township would have a conflict and
could not participate as to matters of the Municipal Authority that would financially
impact or involve Kristobak himself.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
McCue, 00 -567
April 18, 2000
Page 4
Conclusion: As a Municipal Authority Board Member for Dunbar Township,
Kristobak is a "public official" subject to the provisions of the Ethics Act. Kristobak
may, consistent with Section 1 103(a) of the Ethics Act, simultaneously serve in the
positions of Municipal Authority Board Member and Auditor, 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 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.
i erely,
Vincent 'Dopko
Chief Counsel