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Home My WebLink About06-512 SpruillRick Spruill Greensboro Borough Council P.O. Box 306 Greensboro, PA 15338 ADVICE OF COUNSEL February 9, 2006 06 -512 Re: Simultaneous Service, Borough Council Member and Borough Code Enforcement Officer. Dear Mr. Spruill: This responds to your letter dated December 16, 2005, received January 9, 2006, 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., would impose any prohibition or restrictions upon you with regard to simultaneously serving as a Borough Council Member and Borough Code Enforcement Officer. Facts: As a Member of Greensboro Borough Council ( "Borough Council "), you seek an advisory from the State Ethics Commission based upon the following submitted facts. Greensboro Borough (the "Borough ") employs a part -time Borough Code Enforcement Officer. The Borough has had difficulty keeping the part -time Borough Code Enforcement Officer position filled. Other Borough Council Members have asked you to consider simultaneously serving as a Borough Council Member and as the Borough's part - time Code Enforcement Officer. You are concerned that such simultaneous service might result in a conflict of interest for you. You state your understanding that if such simultaneous service would be permitted, you would at a minimum be required to abstain from voting on your appointment to the position and on code enforcement issues. Based upon the above submitted facts, you request an advisory as to whether, pursuant to the Ethics Act, you would be permitted to simultaneously serve as a Borough Council Member and as the Borough Code Enforcement Officer. 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 Spruill, 06 -512 February 9, 2006 Page 2 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 a Borough Council Member, you are a "public official" 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 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 Spruill, 06 -512 February 9, 2006 Page 3 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. 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. Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act requires a public official /public employee with a conflict of interest 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. 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 case, the applicable statutes to be reviewed include the Borough Code and the Pennsylvania Construction Code Act, 35 P.S. § 7210.101 et seq. The Borough Code provides, in pertinent part, 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 member of council 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 (Emphasis added). The Pennsylvania Construction Code Act refers to code enforcement officers as "code administrators." 35 P.S. § 7210.103. The term "code administrator" includes "[a] municipal code official, a construction code official, a third -party agency or the Department of Labor and Industry." Id. The Pennsylvania Construction Code Act provides that a municipality may: (1) designate an employee to serve as the municipal code official to act on behalf of the municipality for administration and enforcement; (2) retain one or more construction code officials or third -party agencies to act on behalf of the municipality for administration and enforcement; (3) enter into an intermunicipal agreement providing for Spruill, 06 -512 February 9, 2006 Page 4 joint administration and enforcement; (4) contract with the proper authorities of another municipality to secure administration and enforcement services; or (5) enter into an agreement with the Pennsylvania Department of Labor and Industry for plan reviews, inspections and enforcement as to certain types of structures. 35 P.S. §7210.501(b). The Pennsylvania Construction Code Act specifically prohibits members of a municipality's governing board from serving as members of the board of appeals that hears appeals from decisions of the code administrator. 35 P.S. § 7210.501(c)(1). However, there does not appear to be any provision in the Pennsylvania Construction Code Act that would prohibit a member of a municipality's governing board from serving as the municipality's code administrator. In considering the aforesaid relevant provisions of the Borough Code and the Pennsylvania Construction Code Act, there does not appear to be any prohibition that would preclude you from simultaneously serving as a Borough Council Member and as the Borough Code Enforcement Officer. Likewise, based upon the facts that have been submitted, there does not appear to be an inherent conflict under Section 1103(a) of the Ethics Act that would preclude your simultaneous service as a Borough Council Member and as the Borough Code Enforcement Officer. (See, e.q., Johnson, Opinion 86 -004). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude you from simultaneously serving in the aforesaid positions, but in each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. Although the Ethics Act would not prohibit you from simultaneously serving in the positions of Borough Council Member and Borough Code Enforcement Officer, you are cautioned that there are issues as to whether you could receive any compensation for serving as the Borough Code Enforcement Officer while also serving as a Borough Council Member. First, Section 46104 of the Borough Code on its face prohibits a borough council member from being compensated for serving in any borough office created or authorized by statute. 53 P.S. § 46104. Second, Section 46104 of the Borough Code prohibits a borough council member of a borough with a population of 3,000 or more from serving as an employee of that borough. The submitted facts do not indicate the population of the Borough. Therefore, you are generally advised that to the extent Section 46104 of the Borough Code would prohibit you from receiving compensation as the Borough Code Enforcement Officer while serving as a Borough Council Member, receipt of such unauthorized compensation could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Member of Greensboro Borough Council, 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 in the positions of Member of Greensboro Borough Council and Code Enforcement Officer of Greensboro Borough, subject to the restrictions, conditions and qualifications set forth above. To the extent Section 46104 of the Borough Code would prohibit you from receiving compensation as the Borough Code Enforcement Officer while serving as a Borough Council Member, receipt of such unauthorized compensation could form the basis for a conflict of interest under Section 1103(a) 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 Spruill, 06 -512 February 9, 2006 Page 5 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