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Home My WebLink About03-591 HeisterChad Heister Thompsontown Municipal Authority P.O. Box 154 Thompsontown, PA 17094 Dear Mr. Heister: ADVICE OF COUNSEL September 22, 2003 03 -591 Re: Simultaneous Service, Water/Wastewater Treatment Plant Operator; Municipal Authority; Borough; Secretary. This responds to your letter of August 22, 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. X01 et seq., imposes any prohibition or restrictions upon a water /wastewater treatment plant operator for a municipal authority from simultaneously serving or being employed as the borough secretary. Facts: You are employed as a Water/Wastewater Treatment Plant Operator for the iTF Thompsontown Municipal Authority ( "Authority "). You state that the Authority is a separate entity from the Borough of Thompsontown ( "Borough "), which created it. In addition to your position with the Authority, you are a Borough Auditor. Your term as Auditor expires on December 31, 2003. You are applying for the position of Borough Secretary. You state your understanding that you would have to resign as Borough Auditor if you would become Borough Secretary. Some Borough Council Members have questioned whether there is a conflict of interest in holding the positions of Water/Wastewater Treatment Plant Operator for the Authority and Borough Secretary at the same time. You state that the current Borough Secretary called the Borough Solicitor and the Borough Association, both of whom concluded that no conflict exists. However, the Borough Association suggested that you seek an advisory from the State Ethics Commission confirming its decision. 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 Holster 03 -591 September 22, 2003 Page 2 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 a Water/Wastewater Treatment Plant Operator for the Thompsontown Municipal Authority ( "Authority "), it will be assumed for purposes of this advice that you are a "public employee' as that term is defined in the Ethics Act and hence you are subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. 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 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 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 Holster 03 -591 September 22, 2003 Page 3 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. 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 the instant case, it is initially noted that you have stated that you will resign from your position as Borough Auditor. Based upon the facts which have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as Water/Wastewater Treatment Plant Operator for the Thompsontown Municipal Authority and Secretary for Thompsontown Borough. 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. Conclusion: As a Water/Wastewater Treatment Plant Operator for the Thompsontown Municipal Authority ( "Authority "), you are a "public employee" subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Water/Wastewater Treatment Plant Operator for the Authority and Secretary for Thompsontown Borough subject to the restrictions, conditions and qualifications set forth above. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Holster 03 -591 September 22, 2003 Page 4 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