The URL can be used to link to this page

Home My WebLink About10-520 Sander ADVICE OF COUNSEL January 14, 2010 David J. Sander, Esquire Friedman Schuman, Applebaum, Nemeroff & McCaffery, P.C. 101 Greenwood Avenue, Fifth Floor Jenkintown, PA 19046-2636 10-520 Dear Mr. Sander: This responds to your letter dated November 18, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would present any prohibitions or restrictions upon a borough council member with regard to voting to appoint herself to the position of borough council president, where, pursuant to a borough ordinance, the borough council president is paid a higher salary than the other borough council members. Facts: You have been authorized by Aleta Ostrander (“Ms. Ostrander”), a Member of Council for Hatboro Borough (“the Borough”), to request an advisory from the Pennsylvania State Ethics Commission on her behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. You state that Ms. Ostrander is considering seeking the presidency of Borough Council. Pursuant to a Borough ordinance, the Borough Council President is paid a higher salary than the other Members of Borough Council. Based upon the above submitted facts, you ask whether the Ethics Act would permit Ms. Ostrander to vote to appoint herself to the position of Borough Council President. 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. Sander, 10-520 January 14, 2010 Page 2 As a Borough Council Member, Ms. Ostrander is 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 related to Section 1103(a) 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 with which he or a member of his immediate family is associated. Sander, 10-520 January 14, 2010 Page 3 "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. "De minimis economic impact." An economic consequence which has an insignificant effect. 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 conflict of interest, the public official/public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend 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. Subject to certain statutory exceptions, 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. It is noted that the above statutory definition of "conflict" or "conflict of interest" contains, in pertinent part, an exclusion referred to herein as the "de minimis exclusion.” The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. In applying the above provisions of the Ethics Act to your specific inquiry, it is noted that the submitted facts do not disclose the amount by which the salary of the Borough Council President exceeds the salary of the other Members of Borough Council. You are advised that unless the de minimis exclusion would be applicable, Section 1103(a) of the Ethics Act would prohibit Ms. Ostrander from using any authority of her public position as a Borough Council Member, including but not limited to voting, to further her appointment as Borough Council President. Cf., Novajosky, Advice 00- 501. 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 Hatboro Borough (“the Borough”), Aleta Ostrander (“Ms. Ostrander”) is a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) Ms. Ostrander is considering seeking the presidency of Borough Council; and (2) pursuant to a Borough ordinance, the Borough Council President is paid a higher salary than the other Members of Borough Council, you are advised as follows. Unless the “de minimis exclusion” to the definition of “conflict” or “conflict of interest” as set forth at Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, would be applicable, Section 1103(a) of the Ethics Act would prohibit Ms. Ostrander from using any authority of her public position as a Borough Council Member, including Sander, 10-520 January 14, 2010 Page 4 but not limited to voting, to further her appointment as Borough Council President. 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