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HomeMy WebLinkAbout05-555 RackleyW. John Rackley, Esquire McNees, Autenreith, Rackley & Walker 345 Commerce Street Beaver, PA 15009 ADVICE OF COUNSEL June 23, 2005 05 -555 Re: Simultaneous Service, Chairman of County Agricultural Land Preservation Board and Administrator of the Board's Agricultural Land Preservation Program. Dear Mr. Rackley: This responds to your letters of May 13 and 20, 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 chairman of a county agricultural preservation board ( "board ") from simultaneously serving or being employed as an administrator of the board's agricultural land preservation program. Facts: As Solicitor for the Beaver County Agricultural Land Preservation Board ( "Board "), you request an advisory on behalf of Joseph E. Petrella, Jr. ( "Petrella ") based upon the following submitted facts. Petrella serves as Chairman of the Board, which is composed of nine members. As Board Chairman, Petrella's responsibilities primarily include scheduling and overseeing Board meetings and voting on Board matters. Petrella has served as Board Chairman for approximately eight years. In addition to serving as Board Chairman, Petrella has performed services for the Board, such as farm inspections, for which he has received an hourly wage. Petrella has also performed the functions of Administrator of the Board's agricultural easement program over the past eight years, although other individuals have actually held the job title. The most recent Administrator was the Chairman of the Beaver County Planning Commission who resigned in January 2005. The question you pose is whether Petrella may simultaneously serve as Board Chairman and Administrator. You state that no other Board member or any other person is presently willing to serve as Administrator. You have submitted a copy of the job description for the position of Administrator of the Beaver County Agricultural Land Preservation Program, which is incorporated herein by reference. Rackley /Petrella, 05 -555 June 23, 2005 Page 2 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. 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, 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 Chairman of the Beaver County Agricultural Land Preservation Board ( "Board "), Joseph E. Petrella, Jr. ( "Petrella ") is a "public official" as that term is defined in the Ethics Act and hence Petrella 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. Rackley /Petrella, 05 -555 June 23, 2005 Page 3 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. 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. In this regard, it is noted that you have not provided any information regarding the applicable enabling statute. In the absence of additional facts, you are generally advised that if the enabling statute prohibits a Board member from also being an employee of the Board, Petrella would have a conflict of interest in simultaneously serving in the two positions in question. However, if serving on the Board and serving as a Board employee is not contrary to the enabling statute, Petrella would not have a conflict of interest as to such simultaneous service. 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. Assuming the Board is responsible for the hiring or appointment of the Administrator, Petrella as a Board Member, would have a conflict of interest and could not participate in matters regarding the compensated position of Administrator. For example, Petrella could not participate in his own appointment /employment as Administrator or vote to set or increase his salary as Administrator or participate in any matter concerning his conduct or duties as Administrator. In each instance of a conflict of interest, Petrella would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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 Rackley /Petrella, 05 -555 June 23, 2005 Page 4 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 Chairman of the Beaver County Agricultural Land Preservation Board and Administrator of the Beaver County Agricultural Land Preservation Program. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) provided such service is not contrary to law as per the enabling legislation or judicial precedents. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As Chairman of the Beaver County Agricultural Land Preservation Board ( "Board "), Joseph E. Petrella, Jr. ( "Petrella ") is a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., Petrella may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Board Chairman and Administrator of the Beaver County Agricultural Land Preservation Program, subject to the restrictions, conditions and qualifications set forth above, and provided such service is not contrary to law as per the enabling legislation or judicial precedents. 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 requester 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