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HomeMy WebLinkAbout98-544 Confidential (2)Law. ADVICE OF COUNSEL April 17, 1998 98 -544 Re: Conflict, Public Official /Employee, Township, Gift, Movie Pass. This responds to your letters of March 3 and March 12, 1998 by which you requested a confidential advisory from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon incumbent township officials /employees, as well as the solicitor, with regard to the use of complimentary movie passes. Facts: As Solicitor for Township A (Township) you request an advisory from the tate Ethics Commission on behalf of the Township Commissioners, Police Chief, Township Manager, Road Superintendent and yourself. The owner of a movie theater located in the Township has obtained the names of incumbent Township officials and has issued movie passes in their names. The passes offer movie admission for two persons at a cost of $1.00 per person. The cost of a movie would normally be $4.25 to $7.50 per person. You state that these passes are issued at the volition of the movie theater owner to whomever happens to hold the office at the beginning of the year and are not based on any understanding that the acceptance of passes will influence the vote, official action or judgment of those officials to whom the passes are issued. You assert that it is similar to season tickets issued by major league football or baseball teams to certain legislative and municipal office holders. You ask whether the use of such movie passes would be in violation of the Ethics Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The Township Commissioners, Police Chief, and Manager on whose behalf you have inquired are public officials /public employees subject to the Public Official and Employe Ethics Law ( "Ethics Law "), and hence they are subject to the provisions of that law. Confidential Advice, 98 -544 April 17, 1998 Page 2 The Road Superintendent on whose behalf you have inquired may or may not be a public official /public employee subject to the Ethics Law. His status cannot be determined based upon the facts which you have submitted. Your own status as Solicitor for the Township shall be discussed below. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. sister. "Immediate family." A parent, spouse, child, brother or In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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 Confidential Advice, 98 -544 April 17, 1998 Page 3 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. In each instance of a conflict, Section 3(j) requires the public official /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 or supervisor. 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 Law, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In this case, in applying the above provisions of the Ethics Law to the Township Commissioners, Police Chief, and Township Manager (and the Road Superintendent, assuming he is covered as a public official /public employee under the Ethics Law), you are advised that if the complimentary movie passes to the movie theater would be accepted, they would constitute gifts under the Ethics Law. There is no per se prohibition under the Ethics Law as to the receipt of true, "no- strings- attached" gifts by a public official /employee. See, Cooper, Opinion No. 92 -009 (Citing Wolfgang, Opinion No. 89- 028). Of course, a gift or gifts valued in the aggregate at $250 or more must be disclosed on the Statement of Financial Interests, pursuant to Section 5(b)(6) of the Ethics Law. 65 P.S. §405(b)(6) (Note: Pursuant to Section 5(d) of the Ethics Law, 65 P.S. §405(d), the State Ethics Commission increased the statutory reporting threshold for "gifts" from $200 to $250 effective with the forms due to be filed in 1998.) Such disclosure must include the name and address of the source, the amount of the gift or gifts, and the circumstances of each gift. Gifts which do not meet the aggregate threshold of $250 need not be disclosed. In this case, it is noted that you have likened these movie passes to season tickets to sporting events, and so it would appear that the movie passes can be used repeatedly. If the value of the movie pass would exceed the $250 reporting threshold — and it appears that it very well could — the recipients who are public officials /public employees would be required to disclose such gifts on their Statements of Financial Interests. As for the question of conflict of interest, there have been various cases before this Commission where the Commission has found violations based upon particular facts where public officials have accepted gifts from vendors or individuals and acted upon matters which the donors had pending before the governmental body. In Sickles, Order No. 901, the State Ethics Commission held that a school district Food Service Director violated Section 3(a) of the Ethics Law, Act 9 of 1989, when she used the authority of her position as Food Service Director to select and place orders with a particular vendor who offered "premium points" — that could be used to receive gifts — Confidential Advice, 98 -544 April 17, 1998 Page 4 and then used the premium points for a wicker furniture set for herself rather than for a credit to the district's account. In Helsel, Order No. 801, the State Ethics Commission held that a School Director violated Section 3(a) of the State Ethics Act (Act 170 of 1978) by using public office to obtain a financial gain for himself and members of his immediate family by supporting or voting for vendors as to school district contracts in return for gifts or gratuities. The Commission further held that Helsel violated Section 3(b) of the Ethics Act by soliciting or receiving gifts or gratuities of value from vendors who held school district contracts based upon the understanding that his vote, official action or judgment would be influenced thereby. In Volpe, Order No. 579 -R and Smith, Order No. 578 -R, township supervisors were found to have violated Section 3(a) of the Ethics Act by using office to obtain an all expense paid trip to Europe for two weeks for themselves and various family members from a developer who had matters pending before the township. Volpe and Smith were also found to have violated Section 3(b) of the Ethics Act in that they received the trip to Europe based upon the understanding that it would influence their action as township supervisors relative to matters that were pending before the township by the developer. In Montemayor, Order No. 574, one of the other township supervisors who did not accept the trip to Europe but who did travel to New York City with the same developer, did not violate Section 3(a) where he paid for his own share of the travel expenses and lodging but did accept opera tickets from the developer (valued at $13 each). However, the Commission noted that the fact that the supervisor traveled with the developer who had been actively seeking township action on various proposals, and the fact that he accepted opera tickets from that developer, created the "appearance" of a conflict of interest (Note: The most recent amendments to the Ethics Law removed any basis for finding "appearances" of conflicts). In Feller, Order No. 576 -R, a township manager was found not to have violated either Section 3(a) or Section 3(b) by accepting free chlorine for his private swimming pool from the owner of a corporation which had contracts with the township, where there was insufficient evidence to establish the use of public office or acceptance of anything of value to influence his official action relative to the receipt of the chlorine. A technical violation of Section 3(a) was found as to Feller's acceptance and use of free tickets for sporting events from a cable television corporation which had a contract with the township. No violation was found as to the acceptance of blankets, vice grips, and flasks from the cable company which were turned over to the Pennsylvania Association of First Class Township Commissioners. In a related case, Zollo, Order No. 577, a township supervisor did not violate Section 3(a) or 3(b) where he received a thirty -five pound container of swimming pool chlorine from the township manager (Feller) who had received it from the aforesaid owner of the chemical company, or where he accepted three sets of free tickets from the cable corporation two years after the contract was awarded and before any rate increase request was submitted. In that case, Zollo offered to pay Feller for the chlorine; did not personally use the tickets but passed them on to others; and further denied that his acceptance of said tickets or of the chlorine affected any township decisions that he made. Although the decision as to whether a conflict of interest is presented by the receipt of a gift is determined on a case -by -case basis, the circumstances which you have presented would appear to be adequate to support the finding of a conflict of interest assuming such public officials /public employees would use the authority of office or confidential information in matter(s) related to the donor. The facts which you have submitted do not reveal any limitation to the number of times such movie passes may be used, and so this Advice necessarily is based upon the assumption that the total value of the reduced cost of movie admission would exceed a "de minimis" amount. Thus, although the Ethics Law would not preclude these public officials /public employees from accepting Confidential Advice, 98 -544 April 17, 1998 Page 5 the aforementioned gift or gifts, each recipient would have a conflict of interest in matters involving the donor. In each instance of a conflict of interest, a public official /public employee is required to abstain from participation and to satisfy the disclosure requirements of Section 3(j) as set forth above. However, with regard to the Township Commissioners, if enough of them would have a conflict under the Ethics Law such that a majority would be unattainable, thereby triggering the Section 3(j) exception set forth above, they would be able to vote despite their conflicts as long as they would first observe the strict requirements of Section 3(j). Turning to the question of the proposed use of the movie pass by you, as Solicitor, you are advised that in 1997, the status of Solicitors under the Public Official and Employe Ethics Law ( "Ethics Law "), Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., was clarified by the appellate courts of Pennsylvania. In P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Commw. Ct. 1997), appeal pending, No. 0091 M.D. Appeal Docket 1997, the Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest provisions of the Ethics Law do apply to solicitors who are public employees and are not just on retainer. However, in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Commw. Ct. 1997), based upon an analysis of prior precedents including Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981), Maunus v. State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988), and P.J.S. v. State Ethics Commission, 669 A.2d 1105 (Pa. Commw. Ct. 1996), the Commonwealth Court of Pennsylvania set forth its view that a municipal Solicitor who is retained by — as opposed to being an employee of — the governmental body is not a "public official" or "public employee" as defined in the Ethics Law and is not subject to the conflict of interest provisions of the Ethics Law. The Court stated: ...[T]his court pointed out in P.J.S. that the General Assembly did not add or include "solicitors" in its definitions of "public employees" or "public officials" whose conduct is regulated by section 3 of the Ethics Act. Id. As such, this court stated that it could not conclude that it was clearly the General Assembly's intent to include "solicitors," who are not normally full -time public employees, but more like consultants, among the class of persons required to comply with the regulations regarding ethical and professional conduct under section 3 of the Ethics Act. Id. Based upon our review of the pleadings in this case and our analysis of Ballou, Maunus and P.J.S., we conclude that CPC's conduct is not governed by the provisions of the Ethics Act and that he is not subject to the jurisdiction of the Commission. C.P.C. v. State Ethics Commission, supra, 698 A.2d at 159. The Court further stated, in a footnote: We note that on July 3, 1997, this court issued its decision in P.J.S. v. Pennsylvania State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997) (P.J.S. 11), this court reiterated that the conflict of interest provisions of section 3 of the Ethics Act apply to solicitors who are public employees and not just on retainer. P.J.S. was hired as a full -time solicitor for the City of Erie, was placed on the City payroll, was paid a salary and received the same benefits as other employees of the City. Like the Commonwealth Confidential Advice, 98 -544 April 17, 1998 Page 6 attorneys in Maunus, P.J.S.'s status with the City was that of an employee rather than a consultant on retainer or an independent contractor. Accordingly, this court determined that P.J.S. was a public employee who was covered by section 3 of the Ethics Act. The present case is distinguishable from P.J.S. 11 in that CPC is not a full -time, salaried employee of the borough who receives the same benefits as other borough employees. Rather, CPC is a legal advisor or consultant on retainer to the borough. As such, his conduct is not covered by section 3 of the Ethics Act. Id., at Note 10. The State Ethics Commission filed a Petition for Allowance of Appeal in the C.P.C. case, which Petition was denied. No. 614 M.D. Allocatur Docket 1997 (Pa. December 2, 1997). Therefore, based upon C.P.C., supra, a Solicitor who is not an employee of the governmental body, but rather is retained, is not considered a "public official" or a "public employee" subject to the Ethics Law and specifically, Section 3(a) of the Ethics Law. However, all Solicitors are required to file Statements of Financial Interests. 65 P.S. §404(a); Foster, Opinion No. 98 -002. Moreover, it is the State Ethics Commission's view that every "person" is subject to Section 3(b) of the Ethics Law. Foster, Opinion No. 98- 002. Section 3(b) of the Ethics Law essentially provides that no "person" shall offer or give to a public official, public employee, or nominee or candidate for public office, or to a member of such an individual's immediate family, or to a business with which such an individual is associated, anything of monetary value based upon the offeror's /donor's understanding that the vote, official action, or judgement of the public official, public employee, or nominee or candidate for public office would be influenced thereby. The State Ethics Commission has held that a Solicitor, though not himself a public official /public employee, may not engage in such conduct in his capacity as a "person." Foster, supra. Thus, with regard to your own prospective use of the movie pass, if you are indeed a retained Solicitor — as opposed to an employed Solicitor — Section 3(a) of the Ethics Law would not apply to restrict you. However, to the extent that the value of the movie pass would meet or exceed the $250 reporting threshold, it would have to be disclosed as a gift on your Statement of Financial Interests. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code or the Rules of Professional Conduct. Conclusion: The Township Commissioners, Police Chief, and Manager of Township A (Township) are public officials /public employees subject to the provisions of the Ethics Law. The Road Superintendent of the Township may or may not be a public official /public employee subject to the Ethics Law and his status cannot be determined based upon the facts submitted. Movie passes to the Township Commissioners, Police Chief, and Township Manager (and the Road Superintendent, assuming he is covered as a public official /public employee under the Ethics Law) would constitute gifts which would have to be reported on the Statement of Financial Interests form by each of the aforesaid individuals who are subject to the Ethics Law if the value of such gift would meet or exceed $250. Although the Ethics Law would not preclude such individuals from accepting such Confidential Advice, 98 -544 April 17, 1998 Page 7 gift(s), conditioned upon the assumption that there would be no "understandings" which would transgress Sections 3(b) and /or 3(c) of the Ethics Law, those individuals who would accept such gift(s) would have a conflict of interest in matters involving the donor. In each instance of a conflict of interest, those public officials /public employees with a conflict would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. With regard to the Township Commissioners, if enough of them would have a conflict under the Ethics Law such that a majority would be unattainable, thereby triggering the Section 3(j) exception set forth above, they would be able to vote despite their conflicts as long as they would first observe the strict requirements of Section 3(j). As Solicitor of the Township, you would not be considered a public official /public employee subject to the Ethics Law if you are retained by — as opposed to being an employee of — the Township. Consequently, based upon the assumption that you are a retained solicitor as opposed to an employed solicitor, Section 3(a) of the Ethics Law would not apply to restrict you with regard to the acceptance /use of the movie pass. However, all Solicitors are required to file Statements of Financial Interests pursuant to Sections 4 and 5 of the Ethics Law. To the extent the value of the movie pass would meet or exceed the reporting threshold of $250, you would be required to disclose it as a gift on your Statement of Financial Interests. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing the requestor 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 t 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 appear at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel