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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