HomeMy WebLinkAbout00-601 McGintyMark E. Mascara, Esquire
25 West Beau Street
Washington, PA 15301
Re: Simultaneous Service; Borough; Mayor; Sewage Authority; Member.
Dear Mr. Mascara:
ADVICE OF COUNSEL
August 22, 2000
00 -601
This responds to your letter of July 20, 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 borough mayor from simultaneously
serving or being employed as a member of the borough sewer authority.
Facts: As the Solicitor for the Borough of New Eagle, Pennsylvania ( "Borough "),
you have been authorized by the New Eagle Borough Council ( "Borough Council ") to
seek an advisory as to whether the Ethics Act would prohibit Mayor Thomas McGinty
( " McGinty ") from being appointed to the New Eagle Borough Sewage Authority
Sewage Authority "). You state that McGinty would like to hold both offices
simultaneously.
The Borough has no police force at this time and has no plans in the immediate
future to re -hire Borough policemen. Pursuant to the Borough Code, the Mayor has the
authority to vote to break a tie at Borough meetings. You suspect that in the future, the
Borough will certainly vote on matters concerning the Sewage Authority given the
interrelationship between the employees and the appointment of members.
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.
Mascara, 00 -601
August 22, 2000
Page 2
As the Mayor of New Eagle Borough, Thomas McGinty ( "McGinty") is a "public
official" as that term is defined in the Ethics Act and hence McGinty is subject to the
provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code §11.1.
Sections 1103(a) and 11030) 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.
(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(a), (j).
The following terms that pertain to conflicts of interest under the Ethics Act are
defined as 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 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.
Mascara, 00 -601
August 22, 2000
Page 3
"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.
In this case, in order to determine whether a conflict exists, the Borough Code
must be reviewed:
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 an y 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.
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
tT.�e 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 11030) 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 Mayor of
Mascara, 00 -601
August 22, 2000
Page 4
New Eagle Borough and a Member of the New Eagle Borough Sewage Authority.
Consequently, such simultaneous service would be permitted within the parameters of
Sections 1103(a) and 11030).
While the Ethics Act would not prohibit or restrict McGinty from simultaneously
serving as the Borough Mayor and an Authority Member, the question would remain as
to whether he could be compensated for his service as an Authority Member under the
Borough Code. In this regard, the facts which you have submitted do not specify
whether McGinty would receive compensation as an Authority Member. Further, the
submitted facts do not specify whether the Sewage Authority has been created under
the Municipalities Authorities Act, 53 P.S. §301 et . and is therefore a separate
governmental body from the Borough or whether7he Sewage Authority is part of the
Borough. In either event, assuming the position on the Sewage Authority is a paid
position, the above quoted language in the Borough Code prohibiting the mayor and
council members from receiving compensation may prohibit McGinty from receiving a
financial benefit as an Authority Member.
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 Borou h 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 a borough mayor may receive
compensation as an authority member requires a more in -depth statutory analysis of the
Borough Code. The Commission 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 a mayor may be
compensated as an authority member.
Assuming the appropriate forum decides that compensation is not permitted as
per the above quoted prohibition in the Borough Code, a mayor who accepts
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 mayor who accepts compensation as an authority member would
not be receiving a private pecuniary benefit. Under this scenario, assuming the position
of Member of the New Eagle Borough Authority is a compensated position, McGinty
may not use the authority of office to vote to break a tie as to his own appointment to
such position or as to any matter that would involve a financial gain as to himself as a
Board Member of the Authority.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act. Specifically not addressed herein is the applicability of the respective
municipal code.
Conclusion: As the Mayor of New Eagle Borough, Thomas McGinty
( "McGinty ") is a "public official" subject to the provisions of the Ethics Act. McGinty
Mascara, 00 -601
August 22, 2000
Page 5
may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the
positions of Mayor of New Eagle Borough and a Member of the New Eagle Borough
Sewage Authority, subject to the restrictions, conditions and qualifications set forth
above. Under Section 1103(a) of the Ethics Act, a borough mayor who is also an
authority board member may or may not be allowed to accept compensation as a
member or officer 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 further assuming the position of Member of the
New Eagle Borough Authority is a compensated position, McGinty may not use the
authority of office to vote to break a tie as to his own appointment to such position or as
to any matter that would involve a financial gain as to himself as a Board Member of the
Authority. 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). 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