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HomeMy WebLinkAbout92-627STATE ETHICS COMMISSION M ' 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -14 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 18, 1992 Ms. Jean Swartwood 92 -627 Vernon Township Sanitary Authority 66 Jackson Avenue Meadville, PA 16335 Re: Service, Township Supervisor, Township Sanitary Authority, Recording Secretary /Bookkeeper/'Clerk for Authority. Dear Ms. Swartwood: This responds to your letter of August 11, 1992, in which you requested advice from the State Ethics Commission. - a- Issue: - Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions union a township sanitary authority's recording secretary /bookkeeper /clerk from also holding office as a township supervisor. Facts: As" Authority Clerk for the Vernon Township Sanitary Authority, you request an advisory regarding • any prohibitions or restrictions placed upon you regarding your prospective 'simultaneous service as a Township Supervisor. The Vernon: Township Sanitary Authority ( "Authority ") was incorporated on September 26, 1961, in compliance with the Municipality Authorities Act of 1945. The Authority constructed two sewer systems in Vernon Township. The Authority .. executed an Agreement of "Lease' with the Township Supervisors who subsequently engaged and appointed the Authority to be General: Manager of the systems. o You advise that Article I, subsection (b) of the Management 'Agreement states, "the Authority shall employ and direct the work of all persons required to operate' and maintain the system and shall fix, determine and negotiate the rates of pay of such persons." You state that y as authority Clerk, have no vote in any decision making by the Authority. j; It appears that in addition to acting as Clerk, you are the Recording Secretary and Bookkeeper of the Authority. You plan to run for the office of Township Supervisor, :and Jean Swartwood September 18, 1992 Page 2 specifically request an advisory from this Commission as to whether any conflict would arise for you due to your serving, as an elected Township Supervisor and as an Authority employee simultaneously. Dis lion: If elected a Township Supervisor for Vernon Township, you w3,11 be a "public official" as that term is defined in the ethics Law and hence you will be subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. Section 3(a) of the Ethics Law provides: - Sectio 3.est et¢,ci Acti viti e g. (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; Sea n ;, pefinitions "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. "Conflict" or "conflict of interest" does not include an action having _a de minimis economic impact or which affects to the same degree ; class consisting of the genera, 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. 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 official /employee shall Jean Swartwood September 18, 1992 Page 3 solicit or accept anything of monetary value based upon the understanding that the vote,' official action, or judgment of the public official /employee would be influenced thereby. Section 3(j) of the Ethics Law provide: as follows: Section 3. Restricted activities. (j) Where _ votinc 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 r -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 Enterest 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 11 permitted to vote if disclosures are made ._asl otherwise provided herein. In the case of three -member governing body of a poli alBz:, !ol .::1* subdivision, where one member has absta4redf rig < from voting as a result of a conflict of<0.,.e:i rtic: interest,' and the remaining two members of the governing body have cast opposing votee; a . member who has abstained shall be perraitteki >to ': • s.: �� vote to break the tie ` vote if disclosure.: made as otherwise provided here, ,7- IC If a : exists,- Section . i3 (j') ` 'requires the public official /employee` to abstain .'and to publicly 'disclose the abstention and reasons for saute, both orally and by filing a written memorandum' to that effect with the person recording the minutes or supervisor. , 'It is initially noted that the Second Class Township Code at 53 P.S. §65410(b), specifically `enumerates 'the• limited townsh g offices or .positions which' a supervisor may simultaneously hold'. However, it is not clear '+hether "& position with a Township Jean Swartwood September 18, 1992 Page 4 Sanitary Authority, which has been duly .created under the Municipality Authorities Act, 53. P.S. §301 et sea., and is a separate goyrnmental body from the Board of Supervisors, would be deemed to be a township position. It would be for_ a court, .rather than for the $?hate Ethics Commission, to interpret the Second Class Township Code s end /or the Municipality Authorities Act as they may impact npon yogr inquiry. Thus, this Advice shall be limited to interpreting the Ethics Law, and shall assume there are no contrary restrictions under the Second Class Township Code and Municipality Authorities Act. It is recommended thatLyou seek. the :advice of legal counsel as to any restrictions, ,under the Second Class Tonship Code and the Municipality Authorities Act. r ^` In applying the above provisions cif' .t 0 Ethics Law to the question of sin } .taneous service, there does " - appear to be any real possibility of a private pecuniary, benefit or inherent conflict arising if you were to ,serve both -as. a Vernon Township Sanitary Agthority - employee and as a .Township Supervisor. Basi.ca 4y, the gthics Law does nots'tate that it is inherently incompatible for a Township Supervis4 to serve or be employed as a Township Sanitary Authority's Recording ,Secretary /Bookkeeper/ Clerk. The main prghibition under the_ thics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, grogps, or entities whose in erests may be adverse. Smith Opinion, 894410. In the,situation:outl above, you would not sery n g entities with . which are.: adverse to each other, However, if a situation arises where or the respective entities yeu represent develop an adverse illterest .then you must remove yourself from that particular matter and fully satisfy the disclosure requipements of Section 3(j) set.fgrth above. If such a situation would arise, additional advice meype from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the appiicsbaityof any other statute, code, ordinance, regulation or other . codes of conduct other than the Ethics Law has not been considered An that they do not involve an interpretation of the Ethics LaW. Specifically not a ddressee( herein j.s the applicability of the Second Class Township Gede or the 4M49441itY Authorities Aot. It is recommended that yo4 seek the advice of legal COunsel as to any restrictions under tk99e 14WS. This Advige is condl.tiAned upon there being no contary restrictions in Vile S econd Mass Township Code or Municipality Authorities Act. 4Qeelus1ens If elected a Township $Upervisor for Vernon Township, u A1,1 e a. 1 #41111c Official" $ub JeCt to the provisions of the ; tki4 Lew,F.. As . 4 pub-10 official, you may, consistent with Section Jean Swartwood September 18, 1992 Page 5 3(a) of the Ethics Law, siMultanedusly serve in the positions of Vernon Township Supervisor and Recording Secretary /Bookkeeper /Clerk for the Vernon Township Sanitary Authority. However, this Advice is expressly conditioned upon there being no contrary restrictions in the Second Class Township Code or Municipality Authorities Act. It is recommended -that you seek theadvice of legal counsel as to any restrictions under those laws. Lastly, the propriety of the proposed course of condtct 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 materiall facts 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 dallenge 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 52.12: Very truly yours, Vincent J'J Dopko, Chief Counsel '