HomeMy WebLinkAbout03-608 YarnallJ. Thomas Yarnall
P.O. Box 105
Forksville, PA 18616
ADVICE OF COUNSEL
December 16, 2003
03 -608
Re: Simultaneous Service, Borough Council Member and Borough Sewage Enforcement
Officer.
Dear Mr. Yarnall:
This responds to your letter of November 7, 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 borough council member from
simultaneously serving or being employed as the borough sewage enforcement officer.
Facts: You are a Member of the Forksville Borough Council. Forksville Borough ("Borough")
> population of approximately 140.
Next year, the Borough is going to lose its Sewage Enforcement Officer ("SEO").
Since you are a certified SEO, you ask whether you may serve as the SEO for the Borough
while you serve as a Borough Council Member.
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 tote 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 a Member of Forksville Borough Council, you are a "public official" 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
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December 16, 2003
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65 Pa.C.S. § 1102.
(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
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.
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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.
In this case, the applicable statutes to be reviewed include the Borough Code and the
Pennsylvania Sewage Facilities Act. 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 thereunder, but no mayor or
councilman shall receive compensation therefor. No elected
borough official of a borough with a population of 3,000 or more
may serve as an employe of that borough. Where there is no
incompatibility in fact, and subject to the foregoing provisions as
to compensation, appointees of council may hold two or more
appointive borough offices, but no mayor or member of council
may serve as borough manager or as secretary or treasurer....
Nothing herein contained shall affect the eligibility of any borough
official to hold any other public office or receive compensation
therefor.
53 P.S. §46104 (Emphasis added).
The Pennsylvania Sewage Facilities Act provides, in pertinent part, as follows:
§750.2. Definitions
As used in this act:
"Local agency" means a municipality, or any combination
thereof acting cooperatively or jointly under the laws of the
Commonwealth, county, county department of health or joint
county department of health.
"Municipality" means a city, town, township, borough or
home rule municipality other than a county.
"Sewage enforcement officer" means the official of the
local agency who issues and reviews permit applications and
conducts such investigations and inspections as are necessary
to implement the act and the rules and regulations thereunder.
35 P.S. §750.2 (Emphasis added).
§750.8. Powers and duties of local agencies
(b) Each local agency in addition to the powers and duties
conferred upon it by existing law shall have the power and the
duty:
(1) To employ an adequate number of sewage
enforcement officers or contract with individuals, firms or
corporations to adequately perform the services of sewage
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December 16, 2003
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enforcement officers to administer the provisions of section 7
of this act within the time periods set forth in this act and in
accordance with the rules and regulations of the department. No
person shall be employed or contracted as a sewage
enforcement officer unless said person has been certified by the
department pursuant to standards set by the Environmental
Quality Board. No person shall be employed or contracted as
a sewage enforcement officer to administer the provisions of
section 7 of this act with respect to a community or an individual
sewage system for which he was or is the contractor. In such a
case, the local agency shall employ or contract with a certified
enforcement officer from an adjoining local agency to administer
the provisions of section 7 of this act with respect to the particular
individual or community sewage system.
35 P.S. §750.8(b)(1) (Emphasis added).
With regard to "statutory incompatibility," under Section 46104 of the Borough Code,
53 P.S. § 46104, set forth above, the question of whether you may simultaneously serve as a
Borough Council Member and the Borough SEO and receive compensation in the latter
position hinges upon the nature of the position of Borough SEO.
It is clear from the face of the above provisions of the Pennsylvania Sewage Facilities
Act that a borough SEO is an official of the borough who may either be an employee of the
borough or an independent contractor. See, Walsh, Advice of Counsel, 00 -617.
If a Borough SEO is considered to be an employee of the Borough, it would appear that
you could simultaneously serve as a Borough Council Member and as a compensated
Borough SEO. The prohibition as to employment of a borough council member by the
borough only applies to boroughs where the population is 3,000 or more. You state that the
population of Forksville Borough is approximately 140.
If, on the other hand, the position of Borough SEO is considered to be a "Borough
Office," it would appear that the above provision of the Borough Code would permit
simultaneous service, but would prohibit you from receiving compensation as the Borough
SEO.
Since the State Ethics Commission does not have the express statutory jurisdiction to
interpret the Borough Code, in the absence of a judicial ruling on the issue, it is not clear
whether a Borough Council Member may be compensated as a Borough SEO.
In any event, 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 for the private ecuniary 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. Assuming you would receive or accept compensation as the Borough
SEO, under Section 1103(a) of the Ethics Act, as a Borough Council Member, you would
have a conflict of interest as to participating on matters pertaining to the employment by the
Borough of an SEO /the contract for SEO services, as such action would result in a financial
benefit to yourself since you are a candidate for the position. A conflict would exist even as to
action to eliminate competitor(s), where such action would assure or increase the possibility
that you would become the Borough SEO. See, Pepper, Opinion 87 -008. In each instance of
a conflict of interest, you would be required to abstain fully and to satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act.
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,
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December 16, 2003
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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 Council Member
and Borough SEO. 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 Member of Forksville Borough Council, 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. You may, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve in the positions of Borough Council Member and Sewage Enforcement
Officer ( "SEO) for Forksville Borough, subject to the restrictions, conditions and qualifications
set forth above. Under Section 1103(a) of the Ethics Act, a Borough Council Member who is
also the Borough SEO may or may not be allowed to accept compensation as a Borough SEO
depending upon the appropriate judicial forum determining whether such compensation is
permitted under the Borough Code. 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