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HomeMy WebLinkAbout95-556 HornAllen L. Horn, Jr. Council President Borough of Montgomery 55 W. Houston Avenue Montgomery, PA 17752 Dear Mr. Horn: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 25, 1995 95-556 Re: Simultaneous Service, Borough Council Member, Borough Manager. This responds to your letter of April 5, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon a borough councilmember from also performing the accounting duties of a borough manager when the responsibilities of borough manager are vested in two individuals. Facts: You are a member and president of the Montgomery Borough Council. The population of the borough is approximately 1800. The Montgomery Borough Manager resigned effective April 13, 1995. You know that neither a councilmember nor a mayor can hold the position of borough manager. You ask that if the council decided to divide the duties of the borough manager into two positions---one for management and one for accounting---could the council appoint you to the accounting position temporarily. You ask further whether the council can set your salary for serving in the temporary position. During the temporary period, the council would decide whether to keep the borough manager's position split and hire two people to fill the new position or to vest the responsibilities of the position in one person as originally established and hire a new borough manager. You also ask, assuming the council decides to keep the position split, whether you could serve simultaneously as a councilmember and a permanent employee in either the new accounting or management position. You state that you would abstain from all votes pertaining to these matters. Discussion: As a councilmember for Montgomery Borough, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. Horn, Jr., Allen L., 95 -556 April 25, 1995 Page 2 402. As to whether the Ethics Act would restrict or prohibit a councilmember from also performing the accounting duties of borough manager, it is noted that the State Ethics Commission pay only address questions regarding the duties and responsibilities of public offiq als within the purview of the Public Official and Employees Ethios Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of Borough Code. If, however, another provision of law somehow impacts qn the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, the this Commission may be required to interpret such provisions of lays, See Bigler, Opinion 85 -020. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public Official or pubic employee shall engage in conduct that constitutes a conflict of interest, The following terms are defined under the Ethics Law: "Conflict or%c4nflict of interest." Use by a public official or public employee of the authority of hie office or employment or any confidential information received through his holding public office or employment fog 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 $e 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 or 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. Horn, Jr., Allen L., 95 -556 April 25, 1995 Page 3 In addition, Sections 3(b) and (c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official. /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the Borough Code must be reviewed: . . Compensation . . Councilmen may receive compensation to be fixed by ordinance at anytime and from time to time as follows: In boroughs with a population of less than five thousand, a maximum of fifteen hundred dollars ($1500) a year . . . 53 P.S. §46001. 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 any 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 usa 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. 546104(emphasis added). Horn, Jr., Allen L., 95 -556 April 25, 1995 Page 4 Borough manager may be created by ordinance; election The council of any borough may, at its discretion, at any time, create by ordinance the office of borough manager and may in like manner abolish the same. While said office exists, the council shall, from time to time, and whenever there is a vacancy, elect, by a vote of a majority of all the members, one person to fill said office, subject to removal by the council at any time by a vote of the majority of all the members. 53 P.S. •$4F6141 (eanphasis added) . Powers and duties; bond The powers and duties of the borough manager shall be regulated by ordinance. The council, by ordinance, may delegate, subject to recall, any of the nonlegialative and nonjudicial powers and duties of the council, the planning commission and the shade tree commission, to the borough manager. With approval of borough council, the mayor may delegate to the borough manager any of his noarlegislative and nonjudicial powers and duties. 53 P.S. $46142. It first must be noted that, although the Commission may be required to interpret other laws that impact on the Ethics Law, it has no jurisdiction to interpret the Borough Code to determine whether a borough council is permitted to vest the powers and duties of a borough manager in two individuals. To determine if the cods would permit a council to vest the power and duties of a borough manager in more than one individual, a forum with appropriate jurisdiction would have to interpret the relevant Code provisions. The following analysis under the Ethics Law assumes a forum with appropriate jurisdiction determined that a borough council has discretion to vest the powers and duties of a borough manager in more than one person. You basically- ask two main questions: (1) whether you can perform - the accounting duties of the borough manager position and (2) whether you can be compensated for such performance. Whether you would perform the work temporarily or permanently is irrelevant under the Ethics Law. The -- Borough Code: states that no councilmember may serve as borough manager, - Looking at Section 46142 of the Code, it is clear the powers and duties of borough manager are those nonlegislative and nonjudicial powers and duties vested in the borough council and delegated by the council, subject Horn, Jr., Allen L., 95 -556 April 25, 1995 Page 5 to recall, to the borough manage ±. Therefore, if the council were to recall duties it delegated at one time to the borough manager, the Ethics Law would not prevent councilmembers from performing their statutory duties. You ask, however, whether you can perform only either the accounting or managerial duties of the former borough manager position in a newly created borough position while also serving as councilmember. The Code does not state the borough manager is a position having managerial duties delegated by the Council. It is a position created at the council's discretion to perform the nonlegislative and nonjudicial duties as delegated by the council. The fact that the borough council would separate the managerial and accounting duties of the position, assuming it had the power to do so, and might name each of the new positions something other than "borough manager" does not change the fact that each of those positions would have duties only delegable to a borough manager. Essentially the council would create two borough manager positions. Clearly the legislature, by prohibiting councilmembers from also serving as borough managers, sought to prevent councilmembers from receiving additional compensation for doing that which they were already statutorily responsible. Therefore, if a councilmember were to accept additional compensation not authorized in law for performing such duties, such compensation would be considered a private pecuniary benefit contrary to Section 3(a) of the Ethics Law. King., Opinion 85 -0254 Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As a councilmember for the Borough of Montgomery, you are a "public official" subject to the provisions of the Ethics Law. As a public official you may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of borough councilmember and borough manager. Lastly, the propriety of the proposed course of 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. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the Horn, Jr., Allen L., 95 -556 April 25, 1995 Page 6 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 fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 7$7- 0$0$). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. erely, Vincent Chief Counsel