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HomeMy WebLinkAbout08-573 NossJoe Noss Borough of Shickshinny Borough Building 35 W. Union Street Shickshinny, PA 18655 Dear Mr. Noss: ADVICE OF COUNSEL August 25, 2008 08 -573 This responds to your letter of July 22, 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 impose any prohibitions or restrictions upon a borough council member's brother with regard to serving as a member of the borough's "UCC hearing board." Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. Your sister, Rosalie Whitebread ( "Ms. Whitebread "), is a Member of Council for Shickshinny Borough ( "Borough "), located in Luzerne County, Pennsylvania. Ms. Whitebread is paid $40.00 per month for her service as a Borough Council Member. You state that Borough Council needs to appoint someone to fill an open position on the Borough "UCC Hearing Board." The aforesaid position is an unpaid position. You state that Borough Council has voted to appoint you as a Member of the Borough UCC Hearing Board subject to the condition that your service in such position would not transgress the Ethics Act. You state that your sister abstained from voting on your conditional appointment to the aforesaid position. You further state that your service in such position would not financially benefit you or your sister. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to serve as a Member of the Borough UCC Hearing Board. Noss, 08 -573 August 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. Factually, you have not provided any specific information regarding the Borough UCC Hearing Board, such as, for example, whether it is a board of appeals created pursuant to Section 7210.501(c) of the Pennsylvania Construction Code Act, 35 P.S. 7210.501(c). Therefore, this advisory shall simply refer to the board as the "UC C Hearing Board" without addressing its nature. 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 pertaining to conflicts of interest 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 Noss, 08 -573 August 25, 2008 Page 3 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. 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 the 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, you are advised as follows. The Ethics Act would not prohibit you from serving as a Member of the Borough UCC Hearing Board while your sister is serving as a Borough Council Member. To the extent you would become a public official subject to the provisions of the Ethics Act by serving as a Member of the Borough UCC Hearing Board, then pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in matters before the Borough UCC Hearing Board that would financially impact you, a member of your immediate family such as your sister, or a business with which you or a member of your immediate family is associated. 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 Borough Code. Noss, 08 -573 August 25, 2008 Page 4 Conclusion: The Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would not prohibit you from serving as a Member of the UCC Hearing Board of the Borough of Shickshinny ( "Borough ") while your sister is serving as a Borough Council Member. To the extent you would become a public official subject to the provisions of the Ethics Act by serving as a Member of the Borough UCC Hearing Board, then pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in matters before the Borough UCC Hearing Board that would financially impact you, a member of your immediate family such as your sister, or a business with which you or a member of your immediate family is associated. 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