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HomeMy WebLinkAbout03-518 MonahanBrian M. Monahan, Esquire 701 Washington Street Easton, PA 18042 Dear Mr. Monahan: ADVICE OF COUNSEL February 28, 2003 03 -518 Re: Simultaneous Service, Township Planning Commission Member and Township Sewage Enforcement Officer. This responds to your letter of January 24, 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 planning commission member from simultaneously serving or being employed as a township sewage enforcement officer. Facts: As Solicitor to the Williams Township Board of Supervisors ( "Board "), you have e authorized to seek an advisory on the Board's behalf. You have also been authorized to seek an advisory on behalf of Joseph Black ( "Black "), a Member of the Williams Township Planning Commission ( "Planning Commission "). You have submitted facts, which may be fairly summarized as follows. Williams Township ("Township"), located in Northampton County, Pennsylvania, is a Second Class Township. Given that the Township is rural and generally not served by public sewer, new lots created by a subdivision are required to be certified for an on -lot sewage system by the Township Sewage Enforcement Officer "SEO "). You state that the SEO's certification is a prerequisite to the recommendation by the Planning Commission for approval of a subdivision by the Board. At the January 6, 2003, Reorganization Meeting, the Board appointed Black as the Township SEO under and subject to your legal opinion that a favorable advice of counsel letter should be sought from the State Ethics Commission in order to avoid a conflict of interest under the Ethics Act. You state that as the Township SEO, Black would be considered a public official. You further state that since Planning Commission Members regularly make recommendations to the Board concerning subdivision and land development plans, you have advised Black not to vote in any proceedings as a Planning Commission Member until such time that you receive an advisory from the State Ethics Commission. Monahan /Black, 03 -518 February 28, 2003 Page 2 The question you pose is whether the Ethics Act or any other law presents any prohibition or restrictions upon an individual from serving as the Williams Township SEO while at the same time serving as a Williams Township Planning Commission Member. You have reviewed the following statutes: Pennsylvania Municipalities Planning Code, 53 P.S. § 10201 — 10206; Pennsylvania Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq.; Pennsylvania Sewage Facilities Act, 35 P.S. § 750.1 et seq.; and Powers and Duties of Sewage Enforcement Officers, 25 Pa. Code § 72.41 — 72.44. With respect to the Pennsylvania Municipalities Planning Code, you opine that Sections 202 and 205 allow elected or appointed officers or employees to serve on a township planning commission. As for the Pennsylvania Sewage Facilities Act, you state that the Act does not directly address this issue. Upon review of the Ethics Act's definition of "conflict" or "conflict of interest," you state that you have been unable to locate any authority defining "conflict of interest" as it relates to the simultaneous service issue you have raised. Finally, you note that although the Pennsylvania Administrative Code imposes prohibitions and restrictions upon the work that an SEO may perform within the municipality by which he is employed, the Code is also silent on the simultaneous service issue. 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. The facts which you have submitted do not clearly indicate whether the Planning Commission on which Black serves is a purely advisory body. Under the Ethics Act and Regulations, members of planning commissions that are purely advisory and do not have the authority to expend public funds (other than to reimburse personal expenses) or to otherwise exercise the power of the State or any political subdivision thereof, are not public officials, but are subject to Sections 1103(b) and 1103(c) which apply to everyone. If the power of the Planning Commission is limited to performing advisory functions only, then Black as a Planning Commission member would not be considered a "public official" subject to the conflict of interest provisions of the Ethics Act. However, if the Planning Commission has the power to make determinations and to expend public funds or to otherwise exercise governmental powers, then Black as a Planning Commission Member would be considered a "public official" as that term is defined in the Ethics Act subject to the provisions of the Ethics Act. If the Planning Commission's power is beyond being purely advisory such that Black would be a public official, and if Black could also serve as the Township SEO, then pursuant to Section 1103(a) of the Ethics Act, Black, as a Planning Commission Member, would have a conflict of interest as to plans involving his work as Township SEO. In each instance of a conflict, Black, as a Planning Commission Member would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. As the Township SEO, Black would be considered a "public employee" subject to the provisions of the Ethics Act and its Regulations. 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. Monahan /Black, 03 -518 February 28, 2003 Page 3 (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 permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). 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 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. This conclusion is expressly conditioned upon the assumption that Black, as Planning Commission Member, is not designated as one of the "citizen members" who "shall not be officers or Monahan /Black, 03 -518 February 28, 2003 Page 4 employe0205. es of the municipality." See, the Pennsylvania Municipalities Planning Code, 53 P.S. § 1 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. 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). 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 a Williams Township Planning Commission Member and Williams Township Sewage Enforcement Officer. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of 25 Pa.Code § 72.41 pertaining to the powers and duties of sewage enforcement officers. In that this section specifies instances where conflicts of interest may arise for sewage enforcement officers, it is strongly suggested that Black seek the advice of legal counsel regarding its applicability. Conclusion: The facts which you have submitted do not clearly indicate whether the Williams Township Planning Commission ( "Planning Commission ") on which Black serves is a purely advisory body. If the power of the Planning Commission is limited to performing advisory functions only, then Black as a Planning Commission member would not be considered a "public official" subject to the conflict of interest provisions of the Ethics Act. However, if the Planning Commission has the power to make determinations and to expend public funds or to otherwise exercise governmental powers, then Black as a Planning Commission Member would be considered a "public official" as that term is defined in the Ethics Act subject to the provisions of the Ethics Act. If the Planning Commission's power is beyond being purely advisory such that Black would be a public official, and if Black could also serve as the Township SEO, then pursuant to Section 1103(a) of the Ethics Act, Black, as a Planning Commission Member, would have a conflict of interest as to plans involving his work as Township SEO. In each instance of a conflict, Black, as a Planning Commission Member would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. As the Township SEO, Black would be considered a "public employee" subject to the provisions of the Ethics Act and its Regulations. Black may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Williams Township Planning Commission Member and Williams Township Sewage Enforcement Officer, subject to the restrictions, conditions and qualifications set forth above. Monahan /Black, 03 -518 February 28, 2003 Page 5 Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of 25 Pa.Code § 72.41 pertaining to the powers and duties of sewage enforcement officers. In that this section specifies instances where conflicts of interest may arise for sewage enforcement officers, it is strongly suggested that Black seek the advice of legal counsel regarding its applicability. 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