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HomeMy WebLinkAbout08-501 MCNEELYErnie B. McNeely Borough Manager Borough of West Chester 401 East Gay Street West Chester, PA 19380 Dear Mr. McNeely: ADVICE OF COUNSEL January 4, 2008 08 -501 This responds to your letter of November 26, 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 borough council member, who is employed by a university within the State System of Higher Education, with regard to participating in matters before the borough council that would involve the university. Facts: As the Borough Manager for the Borough of West Chester ( "Borough "), you have been authorized by James A. Jones, Ph.D. ( "Dr. Jones "), a newly - elected Borough Council Member, to request an advisory from the State Ethics Commission on his behalf as to the following. You state that Dr. Jones will take office on January 7, 2008. You have submitted a copy of Article 11, Sections 201 -204 of the West Chester Home Rule Charter, setting forth the powers and duties of Borough Council. Dr. Jones is employed as a tenured full professor at West Chester University ( "University "). The University is part of the State System of Higher Education. You state that Dr. Jones does not have a direct financial interest in the University, and his wages and benefits are determined by a collective bargaining agreement with the State System of Higher Education. The University is located predominately within the Borough. You state that Borough Council frequently votes on requests and development applications submitted by the University. Based upon the above submitted facts, you pose the following two specific inquiries: McNeely, 08 -501 January 4, 2008 Page 2 (1) Whether the Ethics Act would permit Dr. Jones, in his capacity as a Borough Council Member, to participate in discussions and votes on issues affecting the University; and (2) If the Ethics Act would not permit Dr. Jones, as a Borough Council Member, to participate in matters related to the University, whether Dr. Jones would be prohibited from expressing his opinion at Borough Council meeting(s) as a private citizen on issues pertaining to the University. 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 taking office as a Borough Council Member, Dr. Jones would become a public official 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 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: McNeely, 08 -501 January 4, 2008 Page 3 § 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. "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. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. McNeely, 08 -501 January 4, 2008 Page 4 In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public employee 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. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide in part that no person shall offer or give to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. 65 Pa.C.S. §§ 1103(b), (c). Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In applying Section 1103(a) of the Ethics Act to your inquiry, you are advised that Dr. Jones would generally have a conflict of interest in matters that would financially impact him, a 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, Dr. Jones would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In response to your first specific inquiry, you are advised as follows. A university that is not part of the State System of Higher Education may be considered a "business" (see, e.q., Rubenstein, Opinion 01 -007), and therefore a business with which a public official is associated through an employment relationship. However, in the instant matter, the University, as part of the State System of Higher Education, is an instrumentality of the Commonwealth. See, 24 P.S. § 20 -2002- A; see also, Cowden, Opinion 06 -003; Weiss, Opinion 85- 001.Tnce the University is governmental and is not a "business" as that term is defined by the Ethics Act, the University is not a business with which Dr. Jones is associated. See, Unruh, Advice 03- 507. You are advised that absent a basis for a conflict of interest such as a private pecuniary benefit to Dr. Jones himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Dr. Jones would not have a conflict of interest under Section 1103(a) of the Ethics Act as to participating in discussions or voting on matters before Borough Council that would affect the University. A pecuniary benefit flowing solely to a governmental body does not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01 -005; McCarrier, Opinion 98 -008; Warso, Order 974. Given the answer to your first specific inquiry, your second specific inquiry need not be addressed. 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 Borough Code. Conclusion: Upon taking office as a Council Member for the Borough of West Chester ( "Borough "), James A. Jones, Ph.D. ( "Dr. Jones ") would become a public McNeely, 08 -501 January 4, 2008 Page 5 official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, Dr. Jones would generally have a conflict of interest in matters that would financially impact him, a 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, Dr. Jones would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103) of the Ethics Act. Since Dr. Jones' employer, West Chester University ( "University' , is governmental and is not a "business" as that term is defined by the Ethics Act, the niversity would not be considered a business with which Dr. Jones is associated. Absent a basis for a conflict of interest such as a private pecuniary benefit to Dr. Jones himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated, Dr. Jones would not have a conflict of interest under Section 1103(a) of the Ethics Act as to participating in discussions or voting on matters before Borough Council that would affect the University. 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