Loading...
HomeMy WebLinkAbout08-536 KellyCharles G. Kelly, Sr. P.O. Box 306 Wampum, PA 16157 ADVICE OF COUNSEL April 15, 2008 08 -536 Dear Mr. Kelly: This responds to your letter received March 5, 2008, by which you requested advice from the Pennsylvania 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 with regard to voting to appoint his girlfriend to the position of borough secretary /treasurer. Facts: As a Member of Council for the Borough of Wampum ( "Borough "), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. The position of Borough Secretary /Treasurer is currently vacant. Borough Council has been using both a part -time employee and your girlfriend, who was hired by the Employee Committee as a part -time professional consultant, to perform the duties of the Borough Secretary /Treasurer. You state that Council will be involved in appointing a Borough Secretary/Treasurer in the near future. Your girlfriend is interested in serving as the full - time Borough Secretary /Treasurer when the position becomes available. You state that you and your girlfriend reside in separate homes and do not share incomes. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to voting to appoint your girlfriend as Borough Secretary/Treasurer. 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 Kelly, 08 -536 April 15, 2008 Page 2 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 Borough 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 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 Kelly, 08 -536 April 15, 2008 Page 3 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. 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. In applying the above provisions of the Ethics Act to your specific inquiry, you are advised as follows. Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest," pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before Borough Council that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. As noted above, the term "immediate family" is defined to include a parent, spouse, child, brother or sister. Your girlfriend is not a member of your immediate family. Therefore, your relationship with your girlfriend in and of itself would not form the basis of a conflict of interest for you under the Ethics Act in matters before Borough Council. Accordingly, you are advised that you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to appoint your girlfriend to the position of Borough Secretary/Treasurer. Cf., Knopp, Advice 08 -500. However, if your girlfriend would become your spouse, she would then be considered a member of your "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you would then generally have a conflict of interest in matters before Borough Council that would financially impact you or your spouse. Cf., Lightner, Advice 07 -602. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member of Council for the Borough of Wampum ( "Borough "), you are a public official subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest," pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before Borough Council that would financially Kell , 08 -536 April 15, 2008 Page 4 impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Your girlfriend is not a member of your "immediate family" as that term is defined in the Ethics Act. Therefore, your relationship with your girlfriend in and of itself would not form the basis of a conflict of interest for you under the Ethics Act in matters before Borough Council. You would not have a conflict of interest under 1103(a) of the Ethics Act with regard to voting to appoint your girlfriend to the position of Borough Secretary /Treasurer. If your girlfriend would become your spouse, she would then be considered a member of your "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, you would then generally have a conflict of interest in matters before Borough Council that would financially impact you or your spouse. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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