HomeMy WebLinkAbout03-615 KelemenLawrence Sager, Esquire
Sager & Sager Associates
43 High Street
Pottstown, PA 19464
ADVICE OF COUNSEL
December 31, 2003
03 -615
Re: Simultaneous Service, Borough Council Member, Authority Board Member, and
Administrator of Regional Sewer Authority.
Dear Mr. Sager:
This responds to your letter of November 26, 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 as an authority board member and as the administrator of a regional
sewer authority.
Facts: As Solicitor for the Borough of Trappe ( "Borough "), as well as Co- solicitor for the
Collegeville Trappe Municipal Authority ( "Authority "), you seek an advisory on behalf of John
Kelemen ( "Kelemen "), a duly elected Borough Council Member and an appointed Member of
the Authority Board.
Recently, Kelemen was offered a position as Administrator for the Lower Perkiomen
Valley Regional Sewer Authority ( "Regional Sewer Authority "), a regional sewer authority
made up of member municipalities and authorities including the Boroughs of Collegeville and
Trappe; the Townships of Skippack, Perkiomen, Lower Providence, and Upper Providence;
and the Collegeville Trappe Municipal Authority, Montgomery County Sewer Authority, Lower
Perkiomen Valley Regional Sewer Authority, Lower Providence Township Sewer Authority,
Perkiomen Township Municipal Authority, Skippack Township Authority, and Upper
Providence Township Municipal Authority. You state that the Regional Sewer Authority is an
autonomous body established under the "Authorities Act" [sic]. You further state that neither
the Borough nor the Authority had any input with regard to the appointment of Kelemen as
Administrator of the Regional Sewer Authority.
You state that as Administrator, Kelemen will have no voting authority on the Regional
Sewer Authority. You state that you do not foresee any conflict between the Authority and the
Regional Sewer Authority, noting that the rights and obligations of the Authority, the Borough,
and the Regional Sewer Authority are clearly spelled out in agreements.
Sager /Kelemen, 03 -615
December 31, 2003
Page 2
You opine that there is nothing to preclude Kelemen from being the Administrator of the
Regional Sewer Authority and serving as a Council Member as well as an Authority Board
Member. You state that if a specified issue would arise in the Borough or with the Authority
that would in any way appear to relate to the administration or to issues of and concerning the
Borough and /or the Authority with the Regional Sewer Authority, Kelemen should recuse
himself. You make assurances that after discussing the matter with Kelemen, he would
indeed recuse himself. You further state that you are unaware of any actions that Kelemen
may take as Administrator that would be beneficial to the Authority or to the Borough, or to
Kelemen himself as a result of his being the Administrator of the Regional Sewer Authority, a
Borough Council Member, and an Authority Board Member.
Kelemen seeks confirmation that he may simultaneously serve as a Borough Council
Member, an Authority Board Member, and the Administrator for the Regional Sewer Authority
without transgressing the conflict of any interest provisions of the Ethics Act or the regulations
of the State Ethics Commission or otherwise.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the
i - 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.
As a Borough Council Member and an Authority Board Member, Kelemen is a "public
official" as that term is defined in the Ethics Act and hence Kelemen is 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
Sager /Kelemen, 03 -615
December 31, 2003
Page 3
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), 0).
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.
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 11030) as set forth above. An
Sager /Kelemen, 03 -615
December 31, 2003
Page 4
example of such a conflict would be a situation where official action by Kelemen in one
position would financially impact him in one or both of the other positions he holds.
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 Borough Council
Member, an Authority Board Member, and Administrator for the Regional Sewer Authority.
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; the applicability of any other statute, code, ordinance, regulation, policy 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 Council Member for the Borough of Trappe ( "Borough ") and a
Board Member of Collegeville Trappe Municipal Authority ( "Authority'), John Kelemen
(" Kelemen ") is a "public official" subject to the provisions of the Public Official and Employee
Ethics Act ( "Ethics Act"), 65 Pa.C.S. § 1101 et seq. Kelemen may, consistent with Section
1103(a) of the Ethics Act, simultaneously serve as a Borough Council Member, an Authority
Board Member, and Administrator for the Lower Perkiomen Valley Regional Sewer Authority,
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.
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