City Councilman Mike Haire's appointment last week to the Altoona Water Authority is on hold, based on concerns about its legality.
On the advice of city solicitor Larry Clapper, Haire didn't attend an authority meeting Thursday, where he could have been "seated" as a member, because of possible ethics issues and a potential prohibition in the Third Class City Code, Haire said.
Clapper only realized the problems after okaying the council appointment, Haire said.
The code states that "no ... member ... of a municipality authority of which the city is a member shall serve as a councilman."
That suggests that being a councilman and being a member of a municipality are "incompatible offices," which in turn suggests that a councilman may not serve on an authority, which is the converse of the code's prohibition, said authority solicitor Alan Krier - while emphasizing he wasn't accusing the city of doing anything wrong.
The ethics issue that may underlie the possible prohibition centers around the concept of "interlocking" directorates, which can create a conflict of interest, Krier said.
For example, if City Council members sat on the authority, they potentially could have a conflict between the interests of the authority and the interests of council, he said.
Having current council members on the authority could also compromise the authority's independence, suggested authority member Tom Martin, former city mayor.
The authority successfully emphasized that independence when Moody's threatened to reduce the authority's bond rating, after the city made known its intention to enter the state's Act 47 distressed municipalities program more than a year ago, Krier said.
There's also case law that suggests that the interlocking of boards is not good public policy, Krier said.
Still, the authority has included members of council in the past, said authority consulting engineer Mark Glenn of Gwin Dobson & Foreman.
And there's a township near Harrisburg whose municipal authority is comprised entirely of members of the board of supervisors - although of course townships don't operate under the Third Class City Code, said Joe Sullivan, director of education and training for the Pennsylvania Municipal Authorities Association.
Nor does the Municipal Authorities Act prohibit members of municipal elected governing boards from serving on authorities, Sullivan said.
Still, for now, the matter needs to be checked out by the solicitors before proceeding, according to Haire.
That could mean that council appoints someone else or just waits for more definitive legal direction, he said.
A proposed routine revision of the Code that has passed both chambers of the General Assembly, but that has gone back for potential alterations, would explicitly grant the power for councilmen to serve on authorities - so council could wait
for that to happen, Haire said.
Council wanted to appoint a member to the authority to enhance communication between the organizations, Haire said.
"I kind of volunteered," he said.
If there's a problem, City Council, not the authority, would need to do something about it, said Krier, saying the authority may not have legal "standing" to challenge.
"We would just put it out to council and hope that council does the right thing," Krier said. "We don't want to have both the city and the authority to be embarrassed."