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HomeMy WebLinkAbout21-557 LawryPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL November 8, 2021 To the Requester: Mr. Ronald F. Lawry, Esquire Dear Attorney Lawry: 21-557 This responds to your letter received October 12, 2021, and your email received November 3, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Would the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 etseq., permit a Member of Council for Wall Borough (Borough) to simultaneously serve in a compensated position as the Borough Code Enforcement Officer and issue citations in such position? Brief Answer: YES. The Ethics Act would allow a Member of Borough Council to simultaneously serve in a compensated position as the Borough Code Enforcement Officer and issue citations in such position. Facts: As the Borough Solicitor, you have been authorized by Borough Council to request an advisory from the Commission based upon the following submitted facts: The Borough has a population of 564. Members of Borough Council and the Borough Mayor do not receive any compensation for serving as Borough officials. Borough Council is having difficulty filling the appointed position of Borough Code Enforcement Officer. John Dusak (Mr. Dusak), who is a Member of Borough Council, is willing to serve as the Borough Code Enforcement Officer. Lawry. 21-557 November 8, 2021 Page 2 The question that you have posed is whether the Ethics Act would permit Mr. Dusak to serve in a compensated position as the Borough Code Enforcement Officer — and issue citations in such position — while simultaneously serving as a Member of Borough Council. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a Member of Borough Council, Mr. Dusak is a public official subject to the provisions of the Ethics Act. If Mr. Dusak would be appointed as the Borough Code Enforcement Officer, he would in that capacity be a public official/public employee subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) Voting conflict. --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 Lawry. 21-557 November 8, 2021 Page 3 vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), 0). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: § 1102. 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. The term 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lawry. 21-557 November 8, 2021 Page 4 In applying the above provisions of the Ethics Act to the question presented, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. It is further noted that the Borough Code provides, in pertinent part, as follows: § 1104. Appointments and incompatible offices. (a) General rule. -- Unless there is incompatibility in fact, an 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 under the statute. (b) Prohibition. (1) Except as set forth in paragraph (2), no elected borough official of a borough with a population of 3,000 or more may serve as an employee of that borough. (2) Paragraph (1) shall not apply to a borough official serving as an employee of that borough prior to the certification of the 2010 official census or a subsequent latest official census which indicates an increase in the population of that borough to 3,000 or more. (c) Multiple offices. -- If there is no incompatibility in fact and subject to subsection (a) 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, secretary or treasurer. (h) Construction. -- Nothing contained in this section shall be construed to affect the eligibility of a borough official to hold any other public office or receive compensation. 8 Pa.C.S. § 1104(a)-(c), (h). Lawry. 21-557 November 8, 2021 Page 5 Based upon the submitted fact that the population of the Borough is 564, you are advised that there does not appear to be any statutorily -declared incompatibility that would preclude Mr. Dusak from simultaneously serving as a Borough Council Member and in a compensated position as the Borough Code Enforcement Officer. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily -declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude Mr. Dusak from simultaneously serving as a Borough Council Member and in a compensated position as the Borough Code Enforcement Officer. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 11030) of the Ethics Act. As the Borough Code Enforcement Officer, Mr. Dusak would be permitted to issue citations subject to the restrictions of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member of Borough Council, Mr. Dusak is a public official subject to the provisions of the Ethics Act. If Mr. Dusak would be appointed as the Borough Code Enforcement Officer, he would in that capacity be a public official/public employee subject to the provisions of the Ethics Act. Based upon the submitted fact that the population of the Borough is 564, you are advised that subject to the restrictions, conditions, and qualifications set forth above, Mr. Dusak may, consistentwith Section 1103(a) of the Ethics Act, simultaneously serve as a Borough Council Member and in a compensated position as the Borough Code Enforcement Officer. As the Borough Code Enforcement Officer, Mr. Dusak would be permitted to issue citations subject to the restrictions of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Lawry. 21-557 November 8, 2021 Page 6 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 appeal the Advice to the 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 thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 78 7-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, rian D. Ja isi Chief Coun I