HomeMy WebLinkAbout03-512 KynettADVICE OF COUNSEL
Kenneth D. Kynett, Esquire
Petrikin, Wellman, Damico, Brown & Petrosa
The William Penn Building
109 Chesley Drive
Media, PA 19063
February 21, 2003
03 -512
Re: Simultaneous Service, Township Sewer Authority Employee and Township Supervisor.
Dear Mr. Kynett
This responds to your letter of January 15, 2003, by which you requested advice from the
State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq., imposes any prohibition or restrictions upon a township sewer authority employee
from simultaneously serving as a township supervisor.
Facts: Your law firm represents the Concord Township Sewer Authority ( "Authority "), a
body corporate and politic, incorporated under and pursuant to the Municipality Authorities Act of
1945, as amended. You seek an advisory from the State Ethics Commission on behalf of Mary
Ann Chew ( "Chew "), an Authority employee, based upon the following submitted facts.
Chew is a full -time, at -will, W -2 employee of the Authority. Her official title is
Administrative /Clerical Secretary for the Authority. Chew has been employed in her current
position since February 2000. Chew's spouse, the Authority Manager, is also a full -time, at -will,
N2 employee of the Authority.
As a resident of Concord Township ( "Township "), a township of the second class located
in Delaware County, Chew wishes to run for the elected position of Township Supervisor. You
state that the Township created the Authority, which serves as the provider of sanitary sewer
services. The Authority Board Members are appointed by Township Board of Supervisors. The
Authority Board Members do not receive compensation.
You state that the Authority Board has no objection to Chew seeking the position of
Township Supervisor. However, the Authority would also like to maintain the status quo and
have Chew remain employed with the Authority as Administrative /Clerical Secretary in the event
of her election.
Kynett -Chew 03 -512
February 21, 2003
Page 2
You note that Chew's duties are purely administrative in nature and she has no vote on
any matters of Authority business. Similarly, she has no authority for or role in determining the
compensation paid to her or her husband by the Authority.
Given the foregoing facts and circumstances, the Authority Board, with the authorization
of Chew, requests an opinion from the State Ethics Commission as to whether Chew may
simultaneously serve as a salaried administrative employee of the Authority and as an elected
Township Supervisor and, if so, what limitations or restrictions would apply to her service to the
Authority and to the Township. You state that you have found no prohibitions to Ms. Chew's
simultaneous service under the Second Class Township Code or the Municipalities Authorities
Act.
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 requestor based upon the
facts which the requestor has submitted. In issuing the advisory based upon the facts which the
requestor has submitted, the Commission does not engage in an independent investigation of the
facts, nor does it speculate as to facts which have not been submitted. It is the burden of the
requestor 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 requestor has truthfully
disclosed all of the material facts.
As Administrative /Clerical Secretary for the Concord Township Sewer Authority
Authority "), Mary Ann Chew ( "Chew ") is a "public employee" as that term is defined in the
Ethics Act and hence Ms. Chew is subject to the provisions of the Ethics Act. 65 Pa.C.S. §
1102; 51 Pa. Code § 11.1. If elected as Township Supervisor, Chew would also become a
"public official" subject to the Ethics Act.
Sections 1103(a) and 1103(j) 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.
(j) 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
Kynett -Chew 03 -512
February 21, 2003
Page 3
follows:
permitted to 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
§ 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
f
of ce 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.
In applying the above provisions of the Ethics Act to the question of simultaneous service,
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. There does not appear to be any statutorily -
declared incompatibility precluding simultaneous service in the positions in question.
Turning to the question of conflict of interest, pursuant to Section 1103(a) of the Ethics
Act, 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, a member of his immediate
family, or a business with which he or a member of his immediate family is associated. Thus, if
elected to the position of Township Supervisor, Chew would have a conflict of interest as to
Authority matters before the Township Board if such matters would have a financial impact upon
her or her husband. For example, Chew would have a conflict of interest with regard to
appointing an Authority Member because the Authority Member would, in effect, be one of her
and her husband's employers. See, Start /Leetsdale Borough, Advice 97 -527; Mutschler, Advice
93 -613. See also, Bassi, Opinion 86- 007 -R; Woodrinq, Opinion 90 -001 (wherein the
Commission in both cases noted that official action where such a circular relationship exists
presents a 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, Johnson, Opinion 86-
004). Where an inherent conflict would exist, it would appear to be impossible, as a practical
matter, for the ublic official /public employee to function in the conflicting positions without
running afoul of Section 1103(a).
Kynett -Chew 03 -512
February 21, 2003
Page 4
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, but in each instance of a conflict of interest, the individual would be required to abstain
and to satisfy the disclosure requirements of Section 1103(j) as set forth above.
In this case, based upon the facts which have been submitted, there does not appear to
be an inherent conflict that would preclude simultaneous service as an Administrative /Clerical
Secretary for the Authority and a Township Supervisor. Consequently, such simultaneous
service would be permitted within the parameters of Sections 1103(a) and 1103(j).
Act.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics
Conclusion: As an Administrative /Clerical Secretary for the Concord Township Sewer
Authority ( "Authority "), Mary Ann Chew ( "Chew ") is a "public employee" subject to the provisions
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se . If
elected as Township Supervisor, Chew would also become a "public official" subject to the Et ics
Act. Chew may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the
positions of Administrative /Clerical Secretary for the Authority and Concord Township
Supervisor, subject to the restrictions, conditions and qualifications set forth above. If elected to
the position of Township Supervisor, Chew would have a conflict of interest as to Authority
matters before the Township Board if such matters would have a financial impact upon her or her
husband. For example, Chew would have a conflict of interest with regard to appointing an
Authority Member because the Authority Member would, in effect, be one of her and her
husband's employers. In each instance of a conflict of interest, you would be required to abstain
and observe the disclosure requirements of Section 11030 of the Ethics Act. Lastly, the
propriety of the proposed course of conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(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, provided the requestor has disclosed 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 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- 787 - 0806). Failure to file such an appeal at the Commission within
thirty (30) days may result in the dismissal of the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel