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HomeMy WebLinkAbout08-547 ZimmerlinkAngela M. Zimmerlink Office of Commissioner Fayette County Courthouse 61 East Main Street Uniontown, PA 15401 Dear Ms. Zimmerlink: ADVICE OF COUNSEL May 1, 2008 08 -547 This responds to your letter of March 24, 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 county commissioner with regard to serving on the board of directors of a non - profit organization that provides support to victims /survivors of domestic violence. Facts: As an elected County Commissioner for Fayette County ( "County "), Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You have been asked to serve on the Board of Directors of a non - profit organization named "Domestic Violence Services of Fayette County, Inc." (hereinafter referred to as "DVS "). You state that DVS has been established to provide safer options and support to victims /survivors of domestic violence through individual empowerment, advocacy, sheltering, preventive measures, community education and social change. You have submitted a copy of a document from DVS entitled "Roles and Responsibilities of the Board of Directors," which document is incorporated herein by reference. You state that you would not receive any direct or indirect pecuniary benefit from serving on the Board of Directors of DVS. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to serve as a Director for DVS while serving as a 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 Zimmerlink, 08 -547 May 1, 2008 Page 2 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 County Commissioner, 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 Zimmerlink, 08 -547 May 1, 2008 Page 3 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. 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 use of authority of office is not limited merely to voting, but extends 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. 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 the instant matter, it is noted that the submitted facts do not indicate whether DVS is private or governmental in nature. Regardless of whether DVS would be private or governmental in nature, Section 1103(a) of the Ethics Act would not prohibit you from serving on the Board of Directors of DVS while serving as a County Commissioner. However, to the extent DVS would be private as opposed to governmental in nature, then pursuant to Section 1103(a) of the Ethics Act, matters involving DVS that would come before you in your capacity as a County Commissioner could present conflicts of interest for you under Section 1103(a) of the Ethics Act. The determination of whether conflicts of interest would arise for you as a County Commissioner in matters involving DVS would primarily hinge upon the status of DVS. Although the status of non - profit organizations under the Ethics Act is the subject of current litigation (see, Rendell v. Pennsylvania State Ethics Commission, 938 A.2d 554 (Pa. Cmwlth. 2007)), the State Ethics Commission has long held that a non - profit corporation may be considered a "business" as that term is defined in the Ethics Act (see, discussion in Confidential Opinion, 07 -018, at 7 -9; see also, Soltis - Sparano, Order Zimmerlink, 08 -547 May 1, 2008 Page 4 1045; McConahy, Opinion 96 -006). Based upon long- standing Commission precedent, you are advised that to the extent DVS would be considered private as opposed to governmental in nature, DVS would be a "business" with which you would be associated in your capacity as a Director, such that in your public capacity as a County Commissioner, generally you would have a conflict of interest in matters that would financially impact DVS. In each instance of a conflict of interest, you would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the County Code. Conclusion: As a County Commissioner for Fayette County ("County "), Pennsylvania, 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. Section 1103(a) of the Ethics Act would not prohibit you from serving on the Board of Directors of "Domestic Violence Services of Fayette County, Inc. ( "DVS ") while serving as a County Commissioner. Under the submitted facts, which do not indicate whether DVS is private or governmental in nature, you are advised as follows. To the extent DVS would be private as opposed to governmental in nature, DVS would be a "business" with which you would be associated in your capacity as a Director, such that in your public capacity as a County Commissioner, generally you would have a conflict of interest in matters that would financially impact DVS. In each instance of a conflict of interest, you would be required to abstain fully from participation, and in the instance of a voting conflict, to abstain fully and 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) 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