HomeMy WebLinkAbout04-581 SmithTimothy Smith
403 King Street
Perryopolis, PA 15473
Dear Mr. Smith:
ADVICE OF COUNSEL
August 9, 2004
04 -581
Re: Conflict; Public Official /Employee; Member; Joint Authority Board; Borough;
Council Member; Mayor; Accepting Salary as Municipal Authority Board Member.
This responds to your letter received on July 9, 2004, by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a member of a joint
municipal authority board who is also a borough mayor with regard to accepting
compensation as an authority board member.
Facts: You are the Mayor of the Borough of Perryopolis ( "Borough ") and a Board
Member of the Perryopolis Area Joint Authority ( "Authority "). You seek an advisory from
the State Ethics Commission as to whether you may receive compensation for serving
on the Authority Board. You have submitted facts, the pertinent portions of which may
be fairly summarized as follows.
In June 1998, the Perryopolis Borough Council appointed you to the Authority
Board. At the time of your appointment, you were serving as President of Borough
Council. You have submitted a copy of Borough Council's Regular Meeting Minutes of
June 17, 1998, which document is incorporated herein by reference.
In January 2001, you were reappointed to the Authority Board. You state, "[T]he
solicitor advised that voting upon myself had no bearing because it was a re-
appointment and no one else put a letter in for the position." You have submitted a
copy of Borough Council's Regular Meeting Minutes of January 17, 2001, which
document is incorporated herein by reference.
On several occasions, questions have arisen as to whether you may legally
serve on the Authority Board and receive compensation as an Authority Board Member.
You state that the attorney for the Authority and the attorney for the Borough both
Smith, 04 -581
August 9, 2004
Page 2
indicated that you may legally serve on Borough Council and the Authority Board and
receive compensation in both positions. You state, however, that the attorney for the
Authority later questioned the legality of your appointment to the Authority Board and
your receipt of compensation as an Authority Board Member. You note that the
compensation for serving in each position is $50 per month.
You have submitted a letter dated September 18, 2003 from the Borough
Solicitor to Ron Krepps of the Authority with a carbon copy to you, in which the Solicitor
states that he is unaware of any prohibition that would prevent you, the Borough Mayor,
from being compensated as a Member of the Authority Board.
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 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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn complaint, which
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act. To the extent you have inquired as to
conduct that has already occurred, in particular, your participation as an Authority Board
Member in your reappointment to the Authority in January 2001, such past conduct may
not be addressed in the context of an advisory opinion. However, to the extent you
have inquired as to future conduct, your inquiry may, and shall be addressed.
As Borough Mayor and an Authority Board Member, you are a public official as
that term is defined in the Ethics Act, and hence you are subject to the provisions of that
Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms are defined in the Ethics Act 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
Smith, 04 -581
August 9, 2004
Page 3
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 addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no
person shall offer to a public official /employee anything of monetary value and no public
official /employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /employee
would be influenced thereby. Reference is made to these provisions of the law not to
imply that there has been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 1103(j) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(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(j).
In each instance of a conflict, Section 1103(j) requires the public official/
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes or supervisor.
Smith, 04 -581
August 9, 2004
Page 4
In the event that the required abstention results in the inability of the
governmental body to take action because a majority is unattainable due to the
abstention(s) from conflict under the Ethics Act, then voting is permissible provided the
disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005.
In applying the above provisions of the Ethics Act to the instant matter, 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, any member of his immediate family, or a business with which
he or a member of his immediate family is associated.
The Commission has determined that if a particular statutory enactment prohibits
a public official from receiving a financial benefit, then that public official's receipt of
such a prohibited benefit, through the authority of public office, would also be a use of
the authority of office contrary to Section 1103(a) of the Ethics Act.
In order to determine whether the receipt of compensation by the Authority Board
Members would constitute a rohibited private pecuniary benefit under the Ethics Act,
the provisions of the Borough prohibited
53 P.S. § 45101 et seq. must be reviewed.
The Borough Code also provides 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.
As to the above, it is noted that joint municipal authorities are typically organized
by two or more municipalities pursuant to the Municipality Authorities Act. You have not
submitted any facts pertaining to the manner in which the Authority was created, the
composition of the Board, or the municipalities that may be served by the Authority.
Therefore, it shall be factually assumed for purposes of this advisory that the Authority
was jointly created by one or more municipalities pursuant to the Municipality Authorities
Act, in which case, your position as an Authority Board Member would not be
considered a borough office.
Because your position on the Authority Board would not be considered a borough
office, the Ethics Act would not prohibit you from serving as the Borough Mayor and an
Authority Board Member and receiving compensation in the latter position. However,
under Section 1103(a) of the Ethics Act, you would be precluded from using the
authority of your office as Borough Mayor to participate in any matter(s) that would
involve a financial gain to yourself as an Authority Board Member.
Smith, 04 -581
August 9, 2004
Page 5
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation 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 Mayor of the Borough of Perryopolis ( "Borough ") and as a Board
Member of the Perryopolis Area Joint Authority "Authority"), 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 as Borough Mayor and Authority Board Member and receive
compensation as an Authority Board Member assuming that the Authority, a joint
authority, was created by one or more municipalities pursuant to the Municipality
Authorities Act.
Pursuant to Section 1107(11), 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 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