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HomeMy WebLinkAbout92-628Jeffrey A. Bartges, Esquire Tallman, Rudders & Sorrentino Corporate Plaza 22 North Seventh Street Allentown, PA 18101 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 18, 1992 92 -628 Re: Simultaneous Service, Borough Council Member and Employee of Joint Sewer Authority. Dear Mr. Bartges: This responds to your letters of August 3, 149 and August 12, 1992, in which you requested advice from' "tile State Ethics Commission. = e lc Issues Whether the Public Official and Employee E 1= . Law imposes any prohibition or restrictions upon a borough, 'council member from also serving or being employed as an employee ' joint sewer authority which serves the borough. " Facts: As the Solicitor for the Borough of Ca`1a" in Lehigh County, Pennsylvania, you request an advisory from •Ote Mate Ethics Commission on behalf of Mr. Michael P. Miller $"Borough Council Member. Mr. Miller is employed by the Copiay='WBitehall Sewer Authority (CWSA), which appears to be a".joi'it sewer authority serving the Borough. You state that the`CWSA is a legally comprised authority registered under the Pennsylvania Municipality Authorities Act of 1945, as amended. You reference allegations that the two positions held by Mr. Miller are incompatible and present a conflict of interest. You additionally state that you have reviewed the provisions of the Ethics Law and have rendered your legal opinion that the only opportunity for a possible conflict of interest would be for Mr. Miller as a sitting Borough Council Member to vote for the members of the Authority Board, since the Coplay Borough Council has an opportunity to appoint three of these Board Members. You advise that Mr. Miller has stated from the outset that he would abstain from any vote related to these appointments. You have submitted a copy of an opinion letter which you have drafted, which is incoporated herein by reference. Jeffrey A. Bartges, Esquire September 18, 1992 Page 2 Discussion: As a Borough Council Member for the Borough of Coplay in Lehigh County, Pennsylvania, Mr. Michael P. Miller 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. §402; 51 Pa. Code S1.1: Section 3(a) of the - Ethics Law 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 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 a class consisting of the general public or . 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 neater 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 unque to a particular public office or of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no persdn shall offer to a public official / employee anything of monetary value and no public officiallemployeo "shall 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. Jeffrey A.,Bartges, Esquire September 18, 1992 Page 3 Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted actjvities (j) 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. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and ,reasons for same, both orally and by fiIthf a written memorandum to . that effect with the person recordiht_.he minutes or supervisor. Turning to ybur specific inquiry, '' _p ,, � q ry, it is initialiy �iir'o'�c�'= %t'�iat the General Assexrtbly is constitutionally empowered rtv -de61are wl cfi offices are incompatible. See, Pennsylvania . Coin foi�rg r"tic1e Section 2: A review of the Bof'otigh "Code `and the MuziicipaiitZ _Authorities Act of i945 fails' ° reveal any statutory provisions declaring the position of Borough Council Member to be incompatible Lth service as an employee of a joint sewer authority which serves the Borough. Jeffre A. Bartges, Esquire Septem "` 18, 1992 Cage 4 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 merely by_virtue of simultaneous service as a Borough Council Member for the Borough of Cdplay and as an employee of the Coplay- Whitehall ,Sewer Authority which serves' the Borough. Basically, tie Ethics Law does nbt state that it is inherently incompati11e for a Borough Council memberto serve or be employed as an'emplOZee of a joint sews= sutfiorsty which serves the Borough. The main vrohibition under the Ethics Law and Opinions of the Ethics Co si'in is that one may not serve the interests of two persons, iroi4t, or entities whose_ interests maybe adverse: Smith Ooinion, 89, 010. In the situation outl ned above, Mr. Michael P. Miller would not be serving entities With interests which are adverse to each 'Other. However, if a_ situation arises where Mr; Miller or the respective entities whiff' he represents develop m an adverse interes then Mr. Miller xrn 5t remove himself from that particular matter and fully `saisfy the disclosure 'requirements of Section 3(j) as set forth 'above An obvious example Of where a conflict would arise for Mr. Miller would be as to appointments of Authority keiriBers who would, in effect, be his employers. , Iii analogous situations, the Commission has noted that official a where such a circular relationship exists ii a conflict of interest. See; Bassi, 86- 007 -R; Woedrk , 90 =001: Should .tither Situations arise which ma'' ire *ent a conflict Of interest, additional advice may be sought from the Commission. Lastly, the propriety of the propose conduct has only been addressed under the Ethics Law; the aplcability of any other statute, addressed_ regulation or ot#ier code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion; AS a 8orougl Council Member fo =_the Borough of Cop1ay in Lehigh Coui�tV; Pennsylania, Mr. Michael P. miller is a "public official" subject to the provisions .of the Ethic3 Law. AS a public official /employee; , subject to the limitations, r�estrictiohs, and conditions noted above; 14r: Miller y, consistent with Section 3Via) of.the Ethics taw, s3tultaneously sere as a tOr6ugh Council I-�, ear for the Borough of Cdplat and as an employee of the Coplay- Whitehall Sewer Authority. Lastl the propriety of the prososed course of condnet has Only been addressed under the Ethics Law. pdraiant_ t3 Sections Advice is a com lAte defense in anj� enforcement proceeding initiated By tie Commissions and Jeffrey A. Sartges,, Esquire September 18, 1992 Page 5 evidence of good faith conduct in. any other civil or criminal proceeding, providing the request= has disclosed truthfully all the material facts and committed the acts complained of in reliance on thg Advice given. This, is a public record and will be made available as such. Finally, if 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 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. ry truly yours, 11 Vixcent Do"pko, Chief Counsel'