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HomeMy WebLinkAbout85-502 BurnsBeatrice A. Burns, President Borough Council Borough of Westmont 1560 Menoher Blvd. Johnstown, PA 15905 Re: Joint Recreation Commission, Recreation Authority Dear Ms. Burns: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 January 4, 1985 ADVICE OF COUNSEL 85 -502 This responds to your letter of August 17, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act prohibits a public official from serving as a paid employee of a Recreation Commission and as a member of the Board of such Recreation Commission. Facts: In your capacity as President of the Borough Council of Westmont Borough, hereinafter, the Borough, on 'behalf and with the acquaintance ence of several members of the Borough Council, you asked the State Ethics Commission for an opinion regarding the propriety of certain conduct. Specifically, you ask whether paid employees of a Recreation Commission may also be officials within the municipalities which constitute and create this Commission. You indicate that Westmont Borough, another neighboring borough, a township and a school district have formed a joint Recreation Commission and a Recreation Authority. The Recreation Commission is operated by a Board consisting of two people from each participating borough and township for a total of six members plus three other members appointed by the school board. Each of the participating municipalities, in addition to providing members and appointees to the Board of the Recreation Commission contribute money to the Recreation Commission so that it may carry out its functions. Beatrice A. Burns, President January 4, 1985 Page 2 Essentially, the Recreation Commission receives its funds from participating municipalities and is dependent on these municipalities' and the decisions of the elected officials therein for its operating revenues. It has been the practice, in the past, for elected officials from the participating municipalities to serve on the Recreation Commission and it is anticipated that there may be, on occasion, paid employees of the Recreation Commission as well as elected officials within the participating municipalities who may wish to serve on the Board of the Recreation Commission. It should be noted, finally, that the participating municipality usually enters into a contract with the Recreation Commission in an amount representing the funds that they will contribute to the Recreation Commission which amount reflects or is based upon the employees' salary and operating costs of the Recreation Commission. In turn, under this contract the Recreation Commission provides to the municipalities, the recreation services required by the Borough or the other participating and contracting municipalities. You also ask whether a member of the Recreation Board can also be an employee of the Recreation Commission and whether this kind of situation would give rise to a conflict of interest. Discussion: We must intially note that our jurisdiction and authority is limited to interpreting and providing responses under the State Ethics Act. We cannot, therefore, provide you with any response as to whether or not the above - referenced situation would give rise to a conflict of interest under the provisions of the Borough Code, for example. Thus, this response should not be taken as "clearance" to act under any other statute, regulation, etc., other than the Ethics Act. The elected officials, of course, who serve within the participating municipality as outlined above, would be "public officials" as that term is set forth in the Ethics Act. As such, their conduct must conform to the requirements of the State Ethics Act. Likewise, those paid employees of the Recreation Commission who fall within the parameters of the definition of "public employee" as set forth in the Ethics Act would also be bound by the restrictions and prohibitions of the Ethics Act. Essentially, we understand your question to be whether or not it is an inherent conflict for an elected official or an employee of the Recreation Commission to serve and participate as a member of the Recreation Board, which operates the Recreation Commission and which provides services and receives funds under contract from the participating municipalities, including the Borough. If this is not your question please advise. Beatrice A. Burns, President January 4, 1985 Page 3 If the individuals who are serving on the Recreation Commission and the Board thereof are puhlic officials by virtue of their election as officials within one of the participating municipalities or if these individuals as paid employees of the Recreation Commission are to be considered "public employees ", they should be alert to Section 3(a) of the Ethics Act which states as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403. As can be seen from this Section, any "public official" or "public employee ", whether serving the Borough or employed by the Recreation Board or Commission, may not use their public office or employment to benefit their private financial interests. Likewise, each of these individuals must assure the public that their financial interests do not conflict nor appear to conflict with the public trust. See Section 1 of the Ethics Act, 65 P.S. 401. There does appear to be a potential for conflict between the interests that an individual would serve as an elected official within a municipality or as an employee of the Recreation Commission and the service of such individual as a member of the Board of the Recreation Commission. Specifically, those members who are elected in a municipality would be in a position to make, as members of that municipality's governing body, decisions regarding contracting or funding for the Recreation Commission in which they would be interested in as members of the Board of the Recreation Commission. At least, in order to assure the public that their interests as elected officials within the municipality, such as the Borough, did not conflict with their interests as members of the Board of the Recreation Commission, those elected officials in a participating municipality who serve or are appointed as members of the Recreation Commission or Board should decline to participate as members of the Borough Council on the Borough's decisions regarding the funding and contracting with the Recreation Commission. In this manner, by this abstension, those public officials serving on Borough Council and also serving as members of the Board of or the Recreation Commission would obviate any appearance of a conflict with the public trust insofar as the interests of the Borough and the Recreation Commission may be adverse to each other. Beatrice A. Burns, President January 4, 1985 Page 4 Thus, while it would not necessarily be an inherent conflict for a member of the Borough to be appointed to and to serve as a member of the Recreation Board or Commission he or she, in such a capacity, if appointed, would be required to abstain as a member of the Borough from decisions which would affect or be related to the contract of the Borough with the Recreation Board or Commission. Likewise, as a member of the Recreation Commission such an individual would be required to abstain from participation in matters which would relate to the contract or provision of services to the Borough. Under such circumstances, it is unclear whether the extent of such abstention would render such a member serving in a dual capacity ineffective. This question is one which must be answered by the appointing municipality and, should be the . subject of any code of conduct or regulations which might be adopted by the participating municipality's with respect to their relationship with the Recreation Commission and Authority or Board. We would, of course, reach a similar conclusion with respect to any individual who serves as a paid employee of the Recreation Commission, who would fall within the definition of "public employee," and who might also seek to serve in the capacity as a member of the Board of the Recreation Commission. We note that the preliminary question would be whether such a paid employee would also be a "public employee" as defined in the Ethics Act. For purposes of this response we will assume such a situation and coverage exists. Thus, under these facts, this "public employee," as a member of the Recreation Commission would also have an opportunity to participate in decisions of the Recreation Commission through the Board as to his or her status as an employee of the Recreation Commission, in general. In such a case, as a member of the Board of the Recreation Commission such an individual should probably abstain from participating in decisions of the Recreation Commission made by or through the Board, if any, that would affect him or her as a paid employee. However, it is unclear whether or not you are authorized to seek and secure a binding interpretation or opinion with respect to any such employee. You have indicated that there are no paid employees of the Recreation Commission at present who are so seeking to or do serve as members of the Board of the Recreation Commission, Board, or Authority. Thus, these comments should be considered non - binding at the present time. Should such a situation arise where a paid employee of the Recreation Commission would be asked to or be appointed to serve as a member of the Board of the Recreation Commission and/or Authority, we suggest that you raise this question to us with the knowledge and participation of such an employee so that a binding advice can be rendered and the protections of the Ethics Act with resepct to such a situation can be secured. Beatrice A. Burns, President January 4, 1985 Page 5 Conclusion: Insofar as members of the Borough Council of the Borough of Westmont may be asked to and would be serving as members of the Board of the Recreation Commission and /or the Authority which is an arm of the Recreation Commission to provide services to the Borough, abstention of these individuals on questions relating to the Borough's contracting with the Recreation Commission would be required as set forth above. While there is no per se conflict in an elected official serving in such capacity on the Recreation Commission or the Board thereof and /or the Authority, given the requirement of abstention as set forth above , such an individual may not be able to effectively serve in both capacities. The cautions and concerns regarding the conduct of a paid employee of the Recreation Commission, who may be a "public employee" vis -a -vis serving on the Recreation Board should be considered when and if such a situation arises. If we do not fully appreciate the facts or questions you have presented, please advise and we will respond accordingly. Pursuant to Section 7(9)(ii), 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. SSC /sfd 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 request that the full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, Sandra S. Christianson General Counsel