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HomeMy WebLinkAbout92-635 LichtyMr. Albert M. Lichty 412 White Street Weissport, PA 18235 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 20, 1992 Re: Simultaneous Service, Municipal Authority Member and Borough Council Member. Dear Mr. Lichty: This responds to your letter of September 9, 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 Municipal Authority Member from also serving as a Borough Council Member. Facts: As a current member and chairman of the Weissport Municipal Authority in the Borough of Weissport, Carbon County, Pennsylvania, you request an advisory from the State Ethics Commission. At the September 7, 1992, meeting of Weissport Borough Council, the Council recommended you to fill a vacancy on Council. You ask whether the Public Official and Employee Ethics Law would impose any prohibition or restrictions upon you as a member of the Weissport Municipal Authority from also serving as a Weissport Borough Council Member. You reference Advice of Counsel No. 92- 506, dated January 14, 1992, as relating to a similar set of facts in the Borough of Nesquehoning, Pennsylvania. Discussion: As a member of the Weissport Municipal Authority, 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. §402; 51 Pa. Code X1.1. Furthermore, upon taking office as a member of the Weissport Borough Council, you would also in that capacity be a "public official" as defined in the Ethics Law and subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. 92 -635 Mr. Albert M. Lichty . October 20, 1992 Page 2 (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 a subclass consisting of an industry, occupation or other group which ineluedes the public official` or public employee, . e , a member r of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment :7 `" 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 anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the :publi.c official/employee would be influenced_ thereby. ft is initially noted -that - the Borough Code must be, reviewed to the extent that it impacts lipon the Ethics Law regarding the i.s'sueof whether In simultaneously serving in the above capacities, yrou would be using the authority of office . to obtain a private Pecuniary benefit for yourself, See, .Confidential ,'91-001. In this regard, the Commission 14es previously eId tat if a pecuniary benefit is prohibited by law, then that benefit received through the use of of office would be a private pecuniary benefit for the public official /employee contrary to Section 3(a). Mr. Albert M. Lichty October 20, 1992 Page 3 Id. In this case, the following provision of the Borough Code must be reviewed: S 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 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 no mayor 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 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. 546104. The above provision of the Borough Code would appear to<permit you to hold both of your above positions simultaneously,- but because one of your positions would be as a Borough Councii:Member, there is an issue as to whether you could. tor your other position as a Municipal Autho .ty..Member.. .It is . .. not clear whether a position on the.Munidipei Authority, ,which has presumably been created under the Municipality Authorities Act 53 P.S. S 301 et seq., and is a separate governmental body from the Borough Council, would . be • deemed to be ' a Bor0uoh position . Therefore, while it is clear. that the Borough Code would not preclude your holding ,both.: positions, a judicial determination would be required °as whether you could be compensated as an Authority Member. Mr. Albert M. Lichty October 20, 1992 Page 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 arising if you were to serve as a public official /employee both in your capacity as a Member of the Weissport Municipal Authority and as a Member of the Weissport Borough Council. Basically, the Ethics Law does not state that it is inherently incompatible for borough council member to serve as a member of a municipal authority. 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, you would not be serving °entities with interests which are adverse to each other. However, if a situation arises where you or the respective entities you represent develop an adverse interest, then you must remove yourself from that particular matter and disclose the nature of your interest in 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. Thus, the Ethics Law would not prohibit or restrict you from simultaneously serving as a Member of the Weissport Borough Council and as a Member of the Weissport Municipal Authority, but there is an issue as to whether you could be compensated for your service as an Authority Member under 53 P.S. S46104. If the receipt of compensation as a Weissport Municipal Authority Member while you simultaneously serve as a Weissport Borough Council Member would violate the Borough Code, such would also constitute the use of the authority of office to obtain a private pecuniary benefit for yourself as prohibited by Section 3(a) of the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Section 1104 of the Borough Code, 53 P.S. 546104, has been reviewed to the extent that it impacts upon the Ethics Law regarding the issues addressed herein. Conclusion: As a Member of the Weissport Municipal Authority, you are a "public official" subject to the provisions of the Ethics Law. Upon entering office as a Member of the Weissport Borough Council, you will in that capacity also be a "public official" subject to the provisions of the Ethics Law. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Weissport Mr. Albert M. Lichty October 20, 1992 Page 5 Municipal Authority Member and Weissport Borough Council Member. However, there is an issue as to whether you could receive compensation for your service . as a Member of the Weissport Municipal Authority while serving as a Weissport Borough Council Member. If such receipt of compensation would transgress the Borough Code, such would also be prohibited by Section 3(a) of the Ethics Law. 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 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 \.IJ. Dopko, Chief Counsel