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HomeMy WebLinkAbout03-512 ChewADVICE 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