HomeMy WebLinkAbout05-529 MiglioriAmy R. Schrempf, Esquire
Thomas Shannon Barry & Associates
528 Monongahela Avenue
Glassport, PA 15045
ADVICE OF COUNSEL
March 30, 2005
05 -529
Re: Simultaneous Service; Authority Employee; Administrative Assistant; Township
Commissioner.
Dear Ms. Schrempf:
This responds to your letters of February 16 and 25, 2005, 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. § 1101 et seq., imposes any prohibition or restrictions upon an administrative
assistant employed by a sanitary authority from simultaneously serving as a township
commissioner.
Facts: As Solicitor for the Elizabeth Township Sanitary Authority ( "Authority ") you
seek an advisory on behalf of Malisa Migliori ( "Migliori "), an Authority employee. You have
submitted facts, which may be fairly summarized as follows.
The Authority was incorporated in the Commonwealth of Pennsylvania pursuant to
the Municipal Authorities Act, 53 Pa.C.S. § 5601 et seq. The Board of Commissioners of
Elizabeth Township ( "Township "), a First Class Township, appoints members to the
Authority, but does not supervise any function of the Authority, which is a completely
separate entity from the Township.
Migliori has been employed by the Authority as an Administrative Assistant since
June 1998. You have submitted a copy of Migliori's job description, which is incorporated
herein by reference.
Migliori wishes to run for Township Commissioner. You seek an advisory opinion
as to any potential conflicts of interest in Migliori's contemporaneous service as an
Administrative Assistant with the Authority and as a Commissioner for the Township. You
state your belief that Migliori may not participate in or vote on matters where a conflict
would exist and must satisfy all disclosure requirements.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
Schrempf /Migliori, 05 -529
March 30, 2005
Page 2
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester 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 requester 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 requester has truthfully disclosed all of the material facts.
As an Administrative Assistant for the Authority, Migliori is a "public employee" as
that term is defined in the Ethics Act and hence Migliori 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 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
Schrempf /Migliori, 05 -529
March 30, 2005
Page 3
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. Thus, if elected to the position of Township Commissioner, Migliori would
have a conflict of interest as to Authority matters before the Township Board of
Commissioners if such matters would have a financial impact upon herself. For example,
Migliori as a Township Commissioner would have a conflict of interest with regard to
appointing an Authority Member because the Authority Member would, in effect be one of
her employers. See, Kynett /Chew, Advice 03 -512; Start /Leetsdale Borough, Advice 97-
527; Mutschler, Advice 93 -613. See also, Bassi, Opinion 86- 007 -R; Woodring, Opinion
90 -001 (wherein the Commission in both cases noted that official action where such a
circular relationship exists presents a conflict of interest).
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 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 an
Administrative Assistant for the Elizabeth Township Sanitary Authority and Commissioner
for Elizabeth Township. 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.
Schrempf /Migliori, 05 -529
March 30, 2005
Page 4
Conclusion: As an Administrative Assistant for the Elizabeth Township Sanitary
Authority ( "Authority "), Malisa Migliori ( "Migliori ") is a "public employee" subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101
et seq., Migliori may, consistent with Section 1103(a) of the Ethics Act, simultaneously
serve in the positions of Administrative Assistant for the Authority and Commissioner for
Elizabeth Township, subject to the restrictions, conditions and qualifications set forth
above. If elected Township Commissioner, Migliori would have a conflict of interest as to
Authority matters before the Township Board of Commissioners if such matters would have
a financial impact upon herself. In each instance of a conflict, Migliori would be required to
abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
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