Loading...
HomeMy WebLinkAbout07-586 JenningsADVICE OF COUNSEL Richard R. Jennings, Esquire Griffin, Dawsey, DePaola and Jones, P.C. 101 Main Street Towanda, PA 18848 October 1, 2007 Section 1103(a) and Section 1103(j) of the Ethics Act provide: 07 -586 Dear Mr. Jennings: This responds to your letters of August 14, 2007, and August 21, 2007, 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 prohibitions or restrictions upon a county commissioner relative to operating as a licensed bail bondsman. Facts: You have been authorized by Roger Brown ( "Brown "), a candidate for Bradford County Commissioner, to seek an advisory from the State Ethics Commission on his behalf as to the following. Brown is included on the November 2007 ballot as a candidate for Bradford County Commissioner. Brown also operates as a licensed bail bondsman. You seek advice as to whether the Ethics Act would prohibit or restrict Brown from operating as a licensed bail bondsman if he would be elected as a Bradford County Commissioner. 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. Upon becoming a Bradford County Commissioner, Brown would be a "public official" as that term is defined by the Ethics Act, and hence he would be subject to the provisions of the Ethics Act. Jennings, 07 -586 October 1, 2007 Page 2 § 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 are defined in the Ethics Act 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. "Immediate family." A parent, spouse, child, brother or sister. Jennings, 07 -586 October 1, 2007 Page 3 "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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 /public 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. In each instance of a conflict of interest, a public official /public employee is required to abstain fully from participation in his public capacity. The above statutory definition of "conflict" or "conflict of interest" includes two exclusions, hereinafter referred to as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900. The Commission has determined the applicability of the de minimis exclusion on a case -by -case basis, considering all relevant circumstances. In the past, the Commission has found amounts ranging from $2 to approximately $500 to be de minimis. In order for the class /subclass exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90- 017); Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -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. Examples of conduct that Jennings, 07 -586 October 1, 2007 Page 4 would be prohibited under Section 1103(a) would include: (1) the ursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee or immediate family member is associated (Gorman, Order 1041; Gallen, Order 1198; Rembold, Order 1303; Wilcox, Order 1306), or private client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010). If a business with which the public official /public employee or immediate family member is associated or a private customer /client would have a matter pending before the governmental body, the public official /public employee would generally have a conflict of interest as to such matter. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j) set forth above. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Having established the above general principles, your specific inquiry shall be considered. You are advised that if Brown would be elected as a Bradford County Commissioner, the Ethics Act would not prohibit him from operating as a licensed bail bondsman in his private capacity. However, subject to the "de minimis" and "class /subclass" exclusions contained within the Ethics Act's definition of "conflict" or "conflict of interest," Brown would generally have a conflict of interest in his public capacity as a Bradford County Commissioner in matters that would financially impact him, a member of his immediate family, his or an immediate family member's operations as a licensed bail bondsman, or individuals for whom he or an immediate family member or associated business would provide bail bondsman services. In each instance of a conflict of interest, Brown would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. You are advised that Brown would not have a conflict of interest as to a customer /client from which Brown, a member of Brown's immediate family, or a business with which Brown or his immediate family member is associated would receive only a de minimis financial benefit. 65 Pa.C.S. § 1102. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). For a customer /client involved in multiple transactions, the aggregate financial benefit received from such transactions should be considered in order to determine whether the de minimis exclusion would be applicable. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the County Code or prohibitions, restrictions, or requirements that might impact Brown as a bail bondsman. Conclusion: Upon becoming a Bradford County Commissioner, Roger Brown ("Brown ") would be a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seg If Brown would become a Bradford County Commissioner, Section 1103(a) of the Ethics Act would not prohibit him from operating as a licensed bail bondsman in his private capacity. However, Jennings, 07 -586 October 1, 2007 Page 5 subject to the "de minimis" and "class /subclass" exclusions contained within the Ethics Acts definition of "conflict" or "conflict of interest," Brown would generally have a conflict of interest in his public capacity as a Bradford County Commissioner in matters that would financially impact him, a member of his immediate family, his or an immediate family member's operations as a licensed bail bondsman, or individuals for whom he or an immediate family member or associated business would provide bail bondsman services. In each instance of a conflict of interest, Brown would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(jj) of the Ethics Act. Brown would not have a conflict of interest as to a customer /client from which Brown, a member of Brown's immediate family, or a business with which Brown or his immediate family member is associated would receive only a de minimis financial benefit. For a customer /client involved in multiple transactions, the aggregate financial benefit received from such transactions should be considered in order to determine whether the de minimis exclusion would be applicable. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, Robin M. Hittie Chief Counsel