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HomeMy WebLinkAbout06-522 KrumenakerKevin F. Krumenaker 231 Cathedral Avenue Cresson, PA 16630 ADVICE OF COUNSEL February 28, 2006 06 -522 Re: Simultaneous Service, Borough Council Member and Sewage Plant Operator Trainee for the Borough. Dear Mr. Krumenaker: This responds to your letter of January 25, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibition or restrictions upon a borough council member with regard to simultaneously being employed as a sewage plant operator trainee in the same borough. Facts: As a Council Member for Cresson Borough ( "Borough "), Cambria County, you seek an advisory from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. The Borough recently advertised for the position of Sewage Plant Operator Trainee. Having submitted an application for that position, you state that you have distanced yourself from any discussions or votes regarding any applicants, interviews or recommendations. Noting that the Borough's population is approximately 1,700, you ask whether you may simultaneously serve as a Borough Council Member and as a Sewage Plant Operator Trainee for the Borough. 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 Krumenaker, 06 -522 February 28, 2006 Page 2 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 a Borough Council Member, you are a "public official" subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) 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 Krumenaker, 06 -522 February 28, 2006 Page 3 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. Given the submitted fact that the Borough population is less than 3,000, there does not appear to be any statutorily declared incompatibility precluding simultaneous service in the positions in question. See, 53 P.S. § 46104. 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 Borough Council Member and Sewage Plant Operator Trainee. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j). Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from participating in actions of Borough Council pertaining to the position of Sewage Plant Operator Trainee for which you have applied. See, Gerber, Order 1192. A conflict would exist even as to making recommendations against or disapproving the other applicant(s) for the position when such action would assure or increase the possibility that Council would hire you to the position of Sewage Plant Operator Trainee. See, Pepper, Opinion 87 -008. If you would be hired to the position of Sewage Plant Operator Trainee, you would have a conflict of interest as to employment issues pertaining to yourself individually such as your compensation, evaluation(s), raises and other matters that would financially impact you. You would also generally have a conflict of interest as to matters affecting your superior(s) within the Borough. See, Bassi, Opinion 86- 007 -R, Woodrinq, Opinion 90 -001, Elisco, Opinion 00 -003, and — Confidential Opinion, 05 -004. The basis for such conflicts would be that your superior(s) would exercise authority over you as to your Borough employment, while as a Borough Council Member, you would Krumenaker, 06 -522 February 28, 2006 Page 4 exercise authority over the said superior(s). Such a reciprocal scenario would generally result in a conflict of interest for you under Section 1103(a) of the Ethics Act in matters pertaining to your superior(s). Id. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Council Member for Cresson Borough ( "Borough "), Cambria County, 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 Borough Council Member and Sewage Plant Operator Trainee for the Borough subject to the restrictions, conditions and qualifications set forth above. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest and would be prohibited from participating in actions of Borough Council pertaining to the position of Sewage Plant Operator Trainee for which you have applied. A conflict would exist even as to making recommendations against or disapproving the other applicant(s) for the position when such action would assure or increase the possibility that Council would hire you to the position of Sewage Plant Operator Trainee. If you would be hired to the position of Sewage Plant Operator Trainee, you would have a conflict of interest as to employment issues pertaining to yourself individually such as your compensation, evaluation(s), raises and other matters that would financially impact you. In addition, you would also generally have a conflict of interest as to matters affecting your superior(s) within the Borough. 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