Loading...
HomeMy WebLinkAbout04-505 WellingtonBeth Wellington 19 Victoria Drive Finleyville, PA 15332 ADVICE OF COUNSEL January 26, 2004 04 -505 Re: Simultaneous Service, Municipal Authority Employee and Municipal Authority Board Member. Dear Ms. Wellington: This responds to your letter dated November 17, 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. 71 et seq., imposes any prohibition or restrictions upon an authority employee with regard to simultaneously serving as an authority board member when the authority board has adopted a restriction prohibiting authority board members from being employed by the authority. Facts: As a Clerk/Bookkeeper employed by the Peters Creek Sanitary Authority ority "), you seek an advisory from the State Ethics Commission based upon submitted acts that may be fairly summarized as follows. The Authority Board consists of ten members from the following four municipalities: Finleyville Borough; Nottingham Township; Peters Township; and Union Township. You are interested in serving on the Authority Board as a representative of Union Township. The question that you have posed is whether you may simultaneously serve as an Authority Board member and as an Authority employee. For reasons set forth below, you are concerned that the proposed simultaneous service could jeopardize your status as an Authority employee. You have enclosed copies of pertinent portions of the Authority Minutes dated June 4, 1990, and April 8, 2002, which documents are incorporated herein by reference. The June 4, 1990, minutes include the following motion and vote to restrict members of the Authority Board and their immediate family members from serving as Authority employees: A motion was made by Russell Coombs, seconded by Roy Kurtz that no member of the Board, past or present, or immediate family can be employed by the Authority, part -time or full -time, under any circumstances. Motion carried. Authority Board Minutes of June 4, 1990. Wellington, 04 -505 January 26, 2004 Page 2 You state that in May 1990, prior to the adoption of the aforesaid motion, your spouse resigned as an Authority Board Member due to your employment with the Authority. You state that your spouse resigned to appease the Board and to remove the two of you from any possible criticism, despite having received a letter from the State Ethics Commission indicating that there was no conflict of interest. You state that at the time the June 4. 1990, motion was made, a previous Board Member was serving as an Authority employee, and that he continued to serve in that capacity. You further state that by letter dated December 28, 2001, the Authority Solicitor offered the opinion that an Authority member may be an Authority employee. More recently, as per the submitted portion of the April 8, 2002, Authority Board minutes, the Authority Board has taken action to appoint an Authority Board Member to serve as Interim Authority Manager: The motion was remade by Bruce Blednick, second by Jack Peart, to appoint Mr. Steedle as Interim Authority Manager to oversee day to day operations at the amount of time that he can afford to put in here for the set amount that we agreed on last meeting which was $25.00 an hour no benefits or anything else and that he be in this position until the contract is negotiated and the board has the opportunity to see about hiring a person to come in. A roll call vote was taken. Mr. Steedle recused himself. YES: Jack Peart, James Weger, Harold Keyser, Douglas Sphar, Bruce Blednick, Michael Kutsek, Edward Schultz NO: Lee Amann Motion carried. Authority Board Minutes of April 8, 2002. Based upon all of the above, you ask whether you may simultaneously serve as an Authority Board Member and Authority employee. 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 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. If appointed to serve on the Authority Board, you would in that capacity be considered a "public official" subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 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. Wellington, 04 -505 January 26, 2004 Page 3 (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. 65 Pa.C.S. § 1102. It is additionally noted that the Ethics Act includes the following provisions: § 1111. Supplemental provisions Wellington, 04 -505 January 26, 2004 Page 4 Any governmental body may adopt requirements to supplement this chapter, provided that no such requirements shall in any way be less restrictive than the chapter. § 1112. Conflict of law ... if the provisions of this chapter conflict with any other statute, ordinance, regulation or rule, the provisions of this chapter shall control. 65 Pa.C.S. §§ 1111 -1112. Section 1111 of the Ethics Act specifically permits governmental bodies to adopt restrictions supplementing those of the Ethics Act, as long as such supplemental restrictions are not less restrictive than those of the Ethics Act. Section 1112 provides that in the event of a conflict between the provisions of the Ethics Act and any other statute, ordinance, regulation or rule, the provisions of the Ethics Act shall control. In applying the above provisions of the Ethics Act to the question that you have submitted, 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 itself 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. With regard to simultaneous service as an authority member and authority employee, Section 1103(a) of the Ethics Act itself generally does not prohibit such simultaneous service, as long as the requirements of Sections 1103(a) and 1103(j) of the Ethics Act are observed. See, Swick/Aman, Opinion 91 -006. (Thus, for example, an authority board member may not use the authority of office by participating in matters concerning his own authority employment such as his actual appointment, salary raises, job performance, and the like. Id. (Citing Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, 540 A.2d. 1374 (Pa. Commw. Ct. 1988)). However, in this case, the Authority in question has chosen to adopt its own restriction prohibiting simultaneous service as an Authority Board member and Authority employee. The Authority's restriction does not conflict with the Ethics Act, because while the Ethics Act does not expressly prohibit such simultaneous service, neither does it expressly permit it. Rather, the Authority's restriction falls within Section 1111 of the Ethics Act as a supplemental provision that is more restrictive than the requirements of the Ethics Act. While, as noted above, a governmental body is permitted to adopt requirements that are more restrictive than those of the Ethics Act, the question that you have posed is further Wellington, 04 -505 January 26, 2004 Page 5 complicated by the fact that following the adoption of the aforesaid restriction, the Authority appointed a Board member to serve as Interim Authority Manager. The terms of the appointment raise questions as to whether such service was provided in the capacity of an employee or independent contractor. There could be legal issues as to its significance that could only be decided by a court. Therefore, you are advised as follows: Although the Ethics Act itself would generally not preclude simultaneous service as an authority employee and authority member, in the instant matter, the impact of the adoption of the Authority's own aforesaid restriction and certain related legal issues are beyond the jurisdiction of the State Ethics Commission to determine. It is recommended that you obtain legal advice concerning the implications of the Authority's aforesaid restriction. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: If appointed to serve as a member of the Board of the Peters Creek Sanitary Authority ( "Authority "), you would in that capacity be considered a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics itself generally does not prohibit simultaneous service as an authority member and authority employee, as long as the requirements of Sections 1103(a) and 1103(1) of the Ethics Act are observed. However, in the instant matter, the impact of the adoption of the Authority's own restriction prohibiting Authority Board Members from serving as Authority employees and certain potential, related legal issues are beyond the jurisdiction of the State Ethics Commission to determine. It is recommended that you obtain legal advice concerning the implications of the Authority's aforesaid restriction. 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