HomeMy WebLinkAbout09-500 SmithJeffrey Smith
1067 Terrace Lane
Pottstown, PA 19464
Dear Mr. Smith:
ADVICE OF COUNSEL
January 6, 2009
09 -500
This responds to your letter dated December 1, 2008 (postmarked December 6,
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 permit an individual to seek election as a borough council
member or borough mayor where said individual is involved in a lawsuit against the
borough and some of the borough's elected and appointed officials and employees; and
if said individual would be elected as a borough council member or borough mayor,
whether the Ethics Act would impose any prohibitions or restrictions upon him with
regard to the performance of the duties of his borough position as a result of such
litigation.
Facts: You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You state that you are considering seeking election to public office in the
Borough of Pottstown ( "Borough "), located in Montgomery County, Pennsylvania.
You were previously employed with the Borough. You state that your Borough
employment was terminated due to an allegation that you created a hostile environment
in the workplace. As a result of the termination of your Borough employment, you are
currently involved in litigation (hereinafter referred to as the Litigation ") against the
Borough and some of its elected and appointed officials and employees. You state that
in the Litigation you are seeking financial compensation from the Borough.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to seek election as a Borough Council Member or Borough Mayor.
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
Smith, 09 -500
January 6, 2009
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.
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
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
Smith, 09 -500
January 6, 2009
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.
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, you are
advised that generally, where a public official is involved in litigation, matters pertaining
to or affecting the litigation or a party to the litigation present a conflict of interest for the
public official. See, DeLano, Opinion 88 -008; Golla, Opinion 88 -004; cf., McCullough,
Advice 07- 534;— walt, Advice 07 -524; Hiscott, Advices 06 -517 and 06- 517 -S. Even
where litigation would not be a factor, a public official would have a conflict of interest
under Section 1103(a) of the Ethics Act in matters that would financially impact the
public official, a member of his immediate family, or a business with which he or a
member of his immediate family is associated, unless the de minimis exclusion or the
class /subclass exclusion contained within the above definition of "conflict" or "conflict of
interest" would be applicable.
Turning to your specific inquiry, you are advised as follows. The Ethics Act
would not prohibit you from seeking election as a Borough Council Member or Borough
Mayor. Upon assuming either of the aforesaid positions, you would become a public
official subject to the provisions of the Ethics Act, and pursuant to Section 1103(a) of the
Ethics Act, in your Borough position, you would generally have a conflict of interest in
matters pertaining to the Litigation or individuals who are parties to the Litigation.
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 each instance 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.
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.
Smith, 09 -500
January 6, 2009
Page 4
Conclusion: Based upon the submitted facts that: (1) you were previously
employed with the Borough of Pottstown ( "Borough "), located in Montgomery County,
Pennsylvania; (2) your Borough employment was terminated due to an allegation that
you created a hostile environment in the workplace; (3) as a result of the termination of
your Borough employment, you are currently involved in litigation (hereinafter referred to
as the Litigation') against the Borough and some of its elected and appointed officials
and employees; and (4) in the Litigation you are seeking financial compensation from
the Borough, you are advised as follows.
The Ethics Act would not prohibit you from seeking election as a Borough
Council Member or Borough Mayor. Upon assuming either of the aforesaid positions,
you would become a public official subject to the provisions of the Ethics Act, and
pursuant to Section 1103(a) of the Ethics Act, in your Borough position, you would
generally have a conflict of interest in matters pertaining to the Litigation or individuals
who are parties to the Litigation. 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 each
instance 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.
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