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HomeMy WebLinkAbout23-543 Campbell PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL July 28, 2023 To the Requester: Frank Campbell 23-543 Dear Mr. Campbell: This responds to your letter dated July 6, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would prohibit an individual from simultaneously serving in the following three positions: (1) a Member of the Howe Township Municipal Authority; (2) a Member of the Borough of Newport Planning Commission; and (3) a County Commissioner for Perry County, Pennsylvania. Brief Answer: NO. The Ethics Act would not prohibit the individual from simultaneously serving in the aforesaid three positions. Facts: You are a currently a Member and Chairman of the Howe Township Municipal Authority , which is located in Howe Township, Perry County, Pennsylvania. The Township Municipal Authority operates a recently installed sanitary sewer collection system which has an intermunicipal agreement with the Borough of Newport and the Oliver Township Municipal Authority. You are also currently a Member and Vice-Chairman of the Borough of Newport Planning Commission . You have submitted a copy of Chapter 39 of the Borough of Newport Code of Ordinances ), which provides, in Campbell, 23-543 July 28, 2023 Page 2 pertinent part, that the Borough Planning Commission shall consist of up to five Members appointed by Borough Council. See, Borough Code of Ordinances, § 39-3. The Borough Planning Commission possesses the powers granted by the Municipalities Planning Code, 53 P.S. § 10201 et seq. See, Borough Code of Ordinances, § 39-4. The Planning Commission further possesses the power and authority to, inter alialy for, monitor, implement and take all steps to fulfill and complete, with any other party, grants, funds, contracts, etc., as needed to carry out duties of \[the\] See, Borough Code of Ordinances, § 39-4 C. The Planning Commission al and protection of the shade trees in the Borough. See, Borough Code of Ordinances, §§ 39-2, 55-2. Three County Commissioners will be elected in the November 2023 general election, and you are one of three individuals who will be on the ballot for the November 2023 general election for the office of County Commissioner. Accordingly, it is anticipated that you will be elected as a County Commission in the November 2023 general election. You seek guidance as to whether the Ethics Act would permit you to simultaneously serve as: (1) a Member of the Township Municipal Authority; (2) a Member of the Borough Planning Commission; and (3) a County Commissioner. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. 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 Campbell, 23-543 July 28, 2023 Page 3 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), 1103(j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions 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. 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. 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private Campbell, 23-543 July 28, 2023 Page 4 pecuniary (financial) benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As a Member of the Township Municipal Authority, you are a public official subject to the provisions of the Ethics Act. Based upon a review of the pertinent provisions of the Borough Code of Ordinances, the Borough Planning Commission is not a purely advisory board, and therefore, in your capacity as a Member of the Borough Planning Commission, you are a public official subject to the provisions of the Ethics Act. Cf., Muscalus, Opinion 02-007 (holding that the Ethics excludes members of purely advisory boards). If you would be elected as a County Commissioner, upon assuming said position, you would in that capacity also be a public official subject to the provisions of the Ethics Act. With regard 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 that would preclude you from simultaneously serving in the three public positions at issue. Turning to the question of 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, McCain, Opinion 02-009). 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) of the Ethics Act. 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. However, in each instance of a conflict of interest, the individual would be required to abstain from participation. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude you from simultaneously serving as: (1) a Member of the Township Municipal Authority; (2) a Member of the Borough Planning Commission; and (3) a County Commissioner. Campbell, 23-543 July 28, 2023 Page 5 Consequently, such simultaneous service would be permitted subject to the restrictions and requirements of Sections 1103(a) and 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Respectfully, Bridget K. Guilfoyle Chief Counsel