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HomeMy WebLinkAbout08-520 MCCLURELamont G. McClure, Jr. 4110 Scherman Blvd. Bethlehem, PA 18018 Dear Mr. McClure: ADVICE OF COUNSEL February 26, 2008 08 -520 This responds to your faxed transmission received January 25, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a member of a county council with regard to participating as a member of the county's retirement board in matters pertaining to the county retirement system, where his spouse is employed as an assistant district attorney with the county and is a participant in the county retirement system. Facts: As a Member of the Northampton County Council ( "County Council "), which is the governing body of Northampton County ( "County "), you request an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. The Northampton County Retirement System ( "Retirement System ") is administered by the Northampton County Retirement Board ( "County Retirement Board "). Pursuant to the Northampton County Administrative Code, the County Retirement Board is comprised of seven members, including two Members of County Council. Members of the County Retirement Board have voting privileges relative to matters considered by said Board. Your spouse is employed as an Assistant District Attorney with the County. You state that your spouse currently pays into the Retirement System and presumably will receive benefits after vesting and retirement. You have been asked by the President of County Council to serve on the County Retirement Board. You ask whether it would be a conflict of interest for you to consider and vote on matters before the County Retirement Board due to your wife's participation in the Retirement System. McClure, 08 -520 February 25, 2008 Page 2 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. As a Member of County Council, you are 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: § 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 McClure, 08 -520 February 25, 2008 Page 3 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. 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. The above statutory definition of "conflict" or "conflict of interest" contains two exclusions, referred to herein 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. 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 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. McClure, 08 -520 February 25, 2008 Page 4 In applying the above provisions of the Ethics Act to the instant matter, you are advised that our spouse is a member of your "immediate family" as that term is defined in the Ethics Act. Therefore, pursuant to Section 1103(a) of the Ethics Act, as a County Council Member /County Retirement Board Member, you would generally have a conflict of interest in matters that would financially impact you, your spouse, or a business with which you or your spouse is associated. In each instance of a conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In the event of a voting conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Turning to your specific inquiry, you are advised that pursuant to Section 1103(a) of the Ethics Act, as a County Retirement Board Member, you would have a conflict of interest with regard to considering or voting on matters before the County Retirement Board that would financially impact your spouse, unless the de minimis exclusion or the class /subclass exclusion as set forth in the statutory definition of "conflict" or "conflict of interest" would be applicable. As noted above, in each instance of a conflict of interest, you would be required to abstain fully from participation and, with respect to voting conflicts, to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Northampton County Home Rule Charter. Conclusion: As a Member of the Northampton County Council ( "County Council "), 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. Your spouse, who is employed by Northampton County ( "County ") as an Assistant District Attorney and who participates in the Northampton County Retirement System ( "Retirement System "), is a member of your "immediate family" as that term is defined in the Ethics Act. Based upon the submitted fact that the President of County Council has asked you to serve on the Northampton County Retirement Board ( "Retirement Board "), you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, as a County Council Member /County Retirement Board Member, you would generally have a conflict of interest in matters that would financially impact you, your spouse, or a business with which you or your spouse is associated. As a County Retirement Board Member, you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to considering or voting on matters before the County Retirement Board that would financially impact your spouse, unless the de minimis exclusion or the class /subclass exclusion as set forth in the statutory definition of "conflict" or "conflict of interest" would be applicable. In each instance of a conflict of interest, you would be required to abstain fully from participation and, with respect to voting conflicts, 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. 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 McClure, 08 -520 February 25, 2008 Page 5 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