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HomeMy WebLinkAbout03-569 HendricksonGilmore Hendrickson 1017 Ninth Avenue Brackenridge, PA 15014 Dear Mr. Hendrickson: ADVICE OF COUNSEL July 2, 2003 03 -569 Re: Conflict; Public Official /Employee; Mayor; Borough; Sewer Authority; Board; Simultaneous Service; Compensation. This responds to your letter of June 13, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a borough mayor from simultaneously serving on a sewer authority board. Facts: You currently serve as the Mayor of the Borough of Brackenridge and as ubmitted your name for an open position on the Sewer Authority Board. Council is hesitant to appoint you because of a possible conflict of interest. The six Council members are concerned that you will not be able to break a tie vote on a Sewer Authority matter. You understand that you cannot receive a salary for the position and cannot vote on any matters that would result in a monetary gain to you or your family. Council has requested that you seek an advisory from the State Ethics Commission which would serve as a basis for them to appoint you to the Sewer Authority Board. 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 Hendrickson, 03 -569 July 2, 2003 Page 2 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Mayor of the borough of Brackenridge, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa. C. S. § 1103(a). The following terms are defined in the Ethics Act 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. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee 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 public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (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 Hendrickson, 03 -569 July 2, 2003 Page 3 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(j). In each instance of a conflict, Section 1103(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. An analysis will now be made as to whether you may simultaneously serve on the Sewer Authority Board and, if so, whether you may receive compensation for so doing. 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. 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 public 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 borough Hendrickson, 03 -569 July 2, 2003 Page 4 mayor and sewer authority board member. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Although you may serve in both positions, you as mayor would have a conflict as to participating in matters that would financially impact the Sewer Authority Board members, as for example, setting their salary. The foregoing presupposes that you perform the typical municipal mayor function of voting to break tie votes of Council. Having established that you may serve in both positions under the Ethics Act, the question now becomes whether you may also receive compensation as a Sewer Authority Board member. Section 46104 of the Borough Code provides in pertinent part as follows: § 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 there under, but no mayor or member of council shall receive compensation therefor. 53 P.S. § 46104. If the Sewer Authority was in fact "- - - created by or for the borough - - - ", then you as mayor could not receive any compensation for serving on the board. Since you have not supplied any specific facts as to the establishment of the Sewer Authority, only the above general advice may be provided on this issue. The propriety of the proposed conduct has only been addressed under the Ethics Act; 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 Act. Conclusion: As a Mayor of the Borough of Brackenridge, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. C. S. § 1101 et seq. Although you may simultaneously serve in both positions of mayor and Sewer Authority Board member, you as mayor would have a conflict as to participating in matters that would financially impact the Sewer Authority Board members, as for example, setting their salary. The foregoing presupposes that you perform the typical municipal mayor function of voting to break tie votes of Council. If the Sewer Authority was in fact "- - - created by or for the borough - - - ", then you as mayor could not receive any compensation for serving on the board. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Hendrickson, 03 -569 July 2, 2003 Page 5 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