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HomeMy WebLinkAbout05-541 DenlingerMark A. Denlinger, Esquire Knox, McLaughlin, Gornall & Sennett 120 West Tenth Street Erie, PA 16501 -1461 ADVICE OF COUNSEL April 27, 2005 05 -541 Re: Simultaneous Service, Township Supervisor, County Council Member or City Council Member and Authority Board Member. Dear Mr. Denlinger: This responds to your faxed letter of March 29, 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 a second class township supervisor, third class county council member or third class city council member from simultaneously serving as an industrial and economic development authority board member. Facts: As Solicitor for the Township of Summit ( "Township "), Erie County, Pennsylvania, you seek an advisory on behalf of all three members of the Township Board of Supervisors ( "Board "). You have submitted facts, the material portions of which may be fairly summarized as follows. The Township is a second class township organized and existing pursuant to the Second Class Township Code, 53 P.S. §§ 65101 et seq. Pursuant to the Second Class Township Code, the Township is governed by a three- member Board. The Township may be chosen as a possible location for a licensed racetrack and licensed gaming entity pursuant to the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. § §1101 et seq. To this end, the Township is in the process of organizing and incorporating an industrial and economic development authority ( "Authority "), the purpose of which would be to address and handle infrastructure and development matters if the licensed racetrack and gaming entity would choose a location within the Township's jurisdiction. Pursuant to the Pennsylvania Economic Development Financing Law, 71 [sic] P.S. §§ 371 et seq., the Authority would be created as a separate public entity. Denlinger, 05 -541 April 27, 2005 Page 2 Under the Race Horse Development and Gaming Act, various revenue sharing for property and tax relief would occur with respect to the licensed racetrack and gaming entity, the Township and Erie County. Thus, if such an entity were constructed and developed within the Township, an economic impact would be felt throughout all of Erie County. Because the projects and infrastructure improvements that the Authority would undertake would have a regional impact throughout Erie County, the Supervisors propose to appoint one or all of the following public officials to the Authority Board: a Township Supervisor, an Erie County Council Member, and /or an Erie City Council Member. You note that Erie County ( "County ") is a Third Class County organized and existing pursuant to the County Code, 15 P.S. §§ 101 et seq., and that the City of Erie ( "City ") is a Third Class City organized and existing pursuant to the Third Class City Code, 53 P.S. §§ 35101 et seq. Pursuant to the Economic Development Financing Law, the powers and purposes of the Authority would be exercised by the Authority Board, which would conduct the business and affairs of the Authority, and fix and determine the number of officers, agents and employees of the Authority, as well as their powers, duties and compensation. Authority Board members would hold office until their successors would be appointed; however, such Board Members could succeed themselves on the Board if they would be re- appointed. Authority Board Members would serve without compensation, but could be reimbursed for any necessary traveling or other expenses incurred in the performance of their official duties. Any Authority Board Member could be removed by the Township with or without cause for any reason or no reason. The question you pose is whether a Township Supervisor, County Council Member or City Council Member may simultaneously serve as an Authority Board Member. Referencing various provisions of the Second Class Township Code, County Code and Third Class City Code, you argue that simultaneous service would not be prohibited in the absence of a statutory incompatibility. Specifically with respect to the Third Class City Code, which provides that no member of a municipality authority of which the city is a member shall serve as a council member, you state that the Authority would not be created as a joint authority, and the City would not be a member thereof. You further argue that simultaneous service in the positions in question would not create an inherent conflict because neither the Township Supervisor, County Council Member nor City Council Member would report or account to the Authority Board or vice versa. In this regard, you note that the positions of an Authority Board Member, Township Supervisor, County Council Member, and City Council Member are independent governmental positions with specific duties, obligations, powers and purposes that do not overlap or conflict. You further note that the Authority, Township, County, and City are separate legal municipal bodies with separate powers, purposes, budgets, and obligations. You state that although a Township Supervisor may be viewed as having an inherent conflict due to the fact that he would be appointed to the Authority Board by the Township, that Supervisor would be subject to removal by the Township from the Authority Board at any time and would serve on the Authority Board without compensation. Referencing Section 1103(j) of the Ethics Act, you state that if the Authority would negotiate or review a potential contract with the City or County, the "appropriate public official" would be required to disclose the conflict and abstain from such action in accordance with the Ethics Act. You submit that such a situation would be infrequent or non - existent. Based upon the foregoing facts, you ask whether simultaneous service in the positions in question would be permissible under the Ethics Act. Denlinger, 05 -541 April 27, 2005 Page 3 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 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. A Township Supervisor, County Council Member, City Council Member, and Authority Board Member are "public officials" as that term is defined in the Ethics Act and hence they are 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 Denlinger, 05 -541 April 27, 2005 Page 4 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, McCain, Opinion 02 -009). 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 that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as a Township Supervisor, County Council Member or City Council Member and an Authority Board Member. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). Finally, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee 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. Denlinger, 05 -541 April 27, 2005 Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed is the applicability of the Pennsylvania Race Horse Development and Gaming Act. Conclusion: A Summit Township ( "Township ") Supervisor, an Erie County ( "County ") Council Member, an Erie City ( "City ") Council Member, and an Industrial and Economic Development Authority ( "Authority ") Board Member are "public officials" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. A Township Supervisor, County Council Member or City Council Member may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as an Authority Board Member 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