HomeMy WebLinkAbout06-598 STROSSER, A/ATed L. Strosser, AIA
Architecture & Design, Inc.
230 Market Street
Lewisburg, PA 17837
Dear Mr. Strasser:
ADVICE OF COUNSEL
November 20, 2006
06 -598
This responds to your letter of October 23, 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 an architect who
is appointed to a borough's Historical and Architectural Review Board with regard to
simultaneously serving as a council member for the borough.
Facts: You serve as the appointed local architect to the Historical and Architectural
Review Board for Lewisburg Borough (the "Borough "). A Council Member from your ward
recently resigned from Borough Council. You are considering a possible appointment to
complete the unexpired term of that Council Member. You ask whether the Ethics Act
would prohibit you from simultaneously serving as a Member of the Historical and
Architectural Review Board and as a Borough Council Member, or whether you would be
required to resign from the Historical and Architectural Review Board if you would be
appointed to Borough Council.
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.
Preliminarily, it is noted that there are insufficient facts to enable a conclusive
determination as to whether you, as a Member of the Historical and Architectural Review
Board, are a public official under the Ethics Act. Under the Ethics Act, the definition of
"public official" excludes "members of advisory bodies that have no authority to expend
public funds other than reimbursement for personal expenses or to otherwise exercise the
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November 20, 2006
Page 2
power of the State or any political subdivision thereof." 65 Pa.C.S. § 1102. Because the
facts that you have submitted do not disclose whether the Historical and Architectural
Review Board is a purely advisory body, your status as a Member of that Board cannot be
determined. However, if appointed to Borough Council, you would be a "public official" as
that term is defined in the Ethics Act and hence you would be 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
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November 20, 2006
Page 3
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.
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.
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 statute to be reviewed is the Borough Code.
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 employee 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
therefore....
53. P.S. § 46104 (Emphasis added).
In considering the aforesaid relevant provision of the Borough Code, there does not
appear to be any prohibition that would preclude you from simultaneously serving as a
Borough Council Member and as a Member of the Historical and Architectural Review
Board, provided that you would not receive compensation for serving on that Board.
Furthermore, 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 a Member of the Historical and
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November 20, 2006
Page 4
Architectural Review Board. Absent a statutorily - declared incompatibility or an inherent
conflict under Section 1103(a), the Ethics Act itself 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.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: Due to a factual insufficiency, it cannot be determined whether you, in
your capacity as a Member of the Historical and Architectural Review Board for Lewisburg
Borough (the "Borough "), 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. However, if appointed
to Borough Council, you would be a "public official" as that term is defined in the Ethics Act
and hence you would be subject to the provisions of the Ethics Act. Provided that you
would not receive compensation for serving on the Historical and Architectural Review
Board, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in
the positions of Borough Council Member and Member of the Historical and Architectural
Review Board, 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 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