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HomeMy WebLinkAbout92-551Mr. Richard C. Higley Borough of Girard 34 Main Street, West Girard, PA 16417 Dear Mr. Higley: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 27, 1992 92 -551 Re: Simultaneous Service, Borough Council Member and Part -time Borough Employee. This responds to your letters of January 23, 1992, and January 28, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a borough council member from also serving or being employed as a part -time employee of the borough which has a population of under 3,000. Facts: As the Borough Manager for the Borough of Girard, Pennsylvania, you seek the advice of the State Ethics Commission on behalf of Mr. Joseph Antolik, an elected Member and Vice President of the Borough Council, with regard to whether it would be legal for Mr. Antolik to work in a part -time position of employment with the Borough while holding an elective Council position. You state that in the Borough of Girard, there are several part -time positions which include reading meters and cutting grass in the summer. Due to the limited number of hours available it is extremely difficult to find personnel to fill these positions. Mr. Antolik, who is retired, has asked if he could be considered for part -time work. You note that the population of Girard Borough is 2,879. Based upon all of the above, you request an advisory as to under what circumstances, if any, an elected official could become a part -time Borough employee. Discussion: It is initially noted that your request for advice poses a general question as to under what circumstances an elected official may become a part -time Borough employee. Your Advice may only be addressed with regard to Mr. Antolik, who has specifically authorized you to submit a request for Advice on his behalf. As to any other elected officials, your request may not Richard C. Higley February 27, 1992 Page 2 be addressed because such would constitute a third -party request for advice. As a Council Member for the Borough of Girard, Mr. Joseph Antolik is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code §1.1. Section 3(a) of the Ethics Act 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 under the Ethics Law: 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 be nefit 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. Richard C. Higley February 27, 1992 Page 3 In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public officia3iemployee 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. This Commission may only address questions regarding the duties and responsibilities of public officials /public employees within the purview of the Public Official and Employee Ethics Law. if, however, certain provisions of other laws impact upon the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions law, then the Commission may be required to review such provisions of law. Confidential Opinion 90 -012, at 5 (citing Bigler, Opinion 85 -020) (reviewing Municipality Authorities Act). Accord, Confidential Opinion 91 -001 at 4 (reviewing Second Class Township Code). Under Section 3(a) of the Ethics Law quoted above, the Commission has determined that if a particular statutory enactment prohibits an official's receipt a particular benefit, then that official's receipt of such a prohibited benefit; in and through the authority of office, would also be in contravention of the Ethics Law. Hoak/ McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983). In' this case, the relevant statutory enactment to be reviewed is Section 1104 of the Borough Code, which provides as follows: §46104. 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 statue 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_may -or or member of council may serve as borough manager- or as secretary or treasurer. No person holding the office of justice of the. peace may at the same-time hold the. Richard C. Higley February 27, 1992 Page 4 office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other - public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S . S46104. In considering the above provision of law, the focus of an application of the Ethics Law would be to determine whether Mr. Antolik's receiving compensation as a part -time employee of the Borough while simultaneously serving as a Member and Vice President of the Borough Council would be the receipt of a prohibited benefit, in and through the authority of office, such that it would be in contravention of the Ethics Law. The only relevant portion of the above provision prohibits an elected borough official of a borough with a population of 3,000 or more from serving as an employee of that borough. Although this Commission would not have the express statutory authority to interpret this provision of the Borough Code, it seems clear, based upon your representation that the population of the Borough of Girard is only 2,879 and therefore is less than 3,000, that Mr. Antolik's receipt of compensation as a part -time Borough employee while simultaneously serving as a Member and Vice President of the Borough Council would not be the receipt of a prohibited benefit in and through the authority of office for purposes of applying the Ethics Law to these circumstances. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of -a private pecuniary benefit or inherent conflict arising if Mr. Aritolik were to simultaneously serve as a public official in his capacity as a Member and Vice President of the Borough Council while also serving as a part -time. Borough employee. Basically, the Ethics Law does not state that it is inherently incompatible for a borough council member to serve or be employed as a part -time employee of the borough. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined above, -Mr. Richard C. Higley February 27, 1992 Page 5 Antolik would not be serving 'entities with interests which are adverse to each other. However, there may be -instances where a conflict of -interest would arise for Mr Antolik. Section 3(a) of the Ethics Lath prohibits a public official /public employee 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. Thus, it is clear that Mr. Antolik would have a conf -list of interest as to any matter before him in his capacity as a public official involving his own hiring, continued employ eht, compensation as a part -time borough employee, benefits, and the like. In each instance of a conflict of interest, M Antolik would be required to ` remove himself from any participation of ahy nature whatsoever, including but not limited to participatiht ih official discussions, voting, lobbying for a particular result or otherwise using the authority of office. Furthermore; ih each instance of a conflict of interest, Mr. Antolik wotild be required to publicly disclose his abstention and the reasons fer same, both orally and by filing a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Section 1104 of the Borough Code has been reviewed to the extent it impacts upon an application of the Ethics Law to the circumstances which you have presented. Conclusion: As a Member and Vice President of the Borough Council for the Borough of Girard, Mr. Joseph Antolik is a "public official" subject -to the provisions of the Ethics Law. Subject to the restrictions and qualifications noted above, Mr. Joseph Antolik may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Member and Vice President of the Borough Council and ; part-time Borough employee for the Borough of Girard, which -has a population of under three thousand. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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 Richard C. Higley February 27, 1992 Page 6 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from, the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. ry truly yours, Vincent Dopko Chief Counsel