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HomeMy WebLinkAbout06-521 SchererBarry W. Scherer 863 Lafayette Avenue Palmerton, PA 18071 ADVICE OF COUNSEL February 24, 2006 06 -521 Re: Simultaneous Service, Borough Utility Coordinator and Member of Borough Civil Service Commission. Dear Mr. Scherer: This responds to your letters received by the State Ethics Commission on January 19, 2006, and January 26, 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 a Borough Utility Coordinator with regard to simultaneously serving as a Member of the Borough's Civil Service Commission for the Borough's uniformed police employees. Facts: As the Utility Coordinator for the Borough of Palmerton ( "Borough "), you seek an advisory from the State Ethics Commission. You have submitted facts, the material portions of which may be fairly summarized as follows. In your present capacity as the Utility Coordinator for the Borough, you are a salaried Borough employee working as a coordinator between the Borough's Water and Sewer Departments. You note that you previously served on Borough Council for 25 years, but surrendered your position on Borough Council in March 2005 to accept the position of Utility Coordinator. As Utility Coordinator for the Borough, you report directly to the Borough Manager. However, you state that you take direction from the Water and Sewer Department operation heads. You have been asked to serve on the Civil Service Commission for the Borough's uniformed police employees. Operationally, the police officers are under the direction of the Police Chief and Mayor. However, their finances, operational funds and bargaining agreement are under the direction of Borough Council. The Civil Service Commission is not involved in operations, policies or funding. You have submitted copies of the following documents, which documents are Scherer, 06 -521 February 24, 2006 Page 2 incorporated herein by reference: (1) Borough organizational chart; and (2) Borough of Palmerton Civil Service Commission Rules and Regulations, as amended December 14, 2000. It is noted that the Borough Civil Service Commission Rules and Regulations include the following incompatibility provision: C. DUTIES AND DESCRIPTION OF THE COMMISSION 2. Offices Incompatible with the Civil Service Commission No commissioner shall simultaneously hold an elected or appointed office with the United States Government, the Commonwealth of Pennsylvania, or any political subdivision of the Commonwealth. However, one member of the Commission may also be a member of Council. Borough of Palmerton Civil Service Commission Rules and Regulations at 4. Based upon the foregoing facts, you ask whether you would transgress the Ethics Act by serving as a Member of the Civil Service Commission for the Borough's uniformed police employees while also being employed as the Borough's Utility Coordinator. 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 referenced 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. Based upon the limited facts that you have submitted regarding your job duties /authority as the Borough Utility Coordinator, it is impossible to determine whether, as the Borough Utility Coordinator, you would be considered a "public official" or "public employee" as those terms are defined by the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Therefore, it cannot be conclusively determined whether you are subject to the conflict of interest provisions of the Ethics Act. However, in order to provide as complete a response as possible, this Advice shall address your inquiry based upon the assumption that you are a public official /public employee subject to the provisions of the Ethics Act. 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 Scherer, 06 -521 February 24, 2006 Page 3 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 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. Scherer, 06 -521 February 24, 2006 Page 4 It is administratively noted that the Borough Code provides: § 46173. Offices incompatible with civil service commissioner No commissioner shall at the same time hold an elective or appointed office under the United States Government, the Commonwealth of Pennsylvania or any political subdivision of the Commonwealth, except that one member of the commission may be a member of the council of the borough and one may be a member of the teaching profession. 53 P.S. § 46173. Similarly, on its face, Section C, paragraph 2 of the Borough of Palmerton Civil Service Commission Rules and Regulations would appear to prohibit simultaneous service in an elected or appointed office of the Borough and as a Member of the Borough's Civil Service Commission for the Borough's uniformed police employees. The limited facts that you have submitted do not reveal whether, as the Borough's Utility Coordinator, you are serving in an "appointed office" of the Borough. 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. You are advised that assuming that you would be considered a public official /public employee subject to the provisions of the Ethics Act, you could, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Borough Utility Coordinator and Member of the Borough Civil Service Commission for the Borough's uniformed police employees, conditioned upon the assumption that the position of Borough Utility Coordinator would not be considered an "appointed office" of the Borough within the meaning of any relevant incompatibility provision of the Borough Code or Section C, paragraph 2 of the Borough of Palmerton Civil Service Commission Rules and Regulations. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the limited submitted facts as to your job duties /authority, it is unclear whether, as the Utility Coordinator for the Borough of Palmerton ( "Borough "), you would be considered a "public official" or "public employee" as those terms are defined by the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Assuming that you would be Scherer, 06 -521 February 24, 2006 Page 5 considered a public official /public employee subject to the provisions of the Ethics Act, you could, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Borough Utility Coordinator and Member of the Borough Civil Service Commission for the Borough's uniformed police employees, conditioned upon the assumption that the position of Borough Utility Coordinator would not be considered an "appointed office" of the Borough within the meaning of any relevant incompatibility provision of the Borough Code or Section C, paragraph 2 of the Borough of Palmerton Civil Service Commission Rules and Regulations. 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