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HomeMy WebLinkAbout10-556 Taylor ADVICE OF COUNSEL March 25, 2010 Maribeth Taylor McKees Rocks Borough Council Member 1215 Holmes Street McKees Rocks, PA 15136 10-556 Dear Ms. Taylor: This responds to your undated letter received January 6, 2010, and your letter dated January 26, 2010, 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 member of a borough council, who plans to seek election to the Pennsylvania House of Representatives beginning in May 2010, and who serves on the board of a non-profit community development corporation, with regard to working in a full-time or part-time paid position with the community development corporation. Facts: As a Member of Council for McKees Rocks Borough (“the Borough”), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You state that you plan to seek election to the Pennsylvania House of Representatives (“House”) beginning in May 2010. You state that for the past two years, you have served on the board of a non- profit corporation named “McKees Rocks Community Development Corporation” (“the CDC”), having been appointed by the Borough Mayor to a non-executive/non-officer position. You have submitted a copy of the CDC’s Articles of Incorporation, which document is incorporated herein by reference. You state that you have been asked to consider a paid position working for the CDC in the residential revitalization area. The position would involve making new contacts, researching available funds, and instituting programs and plans to redevelop the community’s residential areas. You state that many of the position’s duties would involve the same activities that you have already been performing as a concerned resident of the community. You state that it would be your choice as to whether the position would be full-time or part-time. Taylor, 10-556 March 25, 2010 Page 2 You state that the Borough was not involved in the formation of the CDC. You further state that the position being offered to you would not be a Borough job, but rather, would be a job working directly for the CDC. Based upon the above submitted facts, you ask whether, pursuant to the Ethics Act, you would be permitted to accept the aforesaid position of employment with the CDC while continuing to serve as a Borough Council Member and seeking election to the House. 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. It is further initially noted that this advisory is limited to addressing the narrow question that you have posed. As a Borough Council Member, 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). Taylor, 10-556 March 25, 2010 Page 3 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. "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. A non-profit entity is a “business” as that term is defined by the Ethics Act. Rendell v. State Ethics Commission, Pa. , 983 A.2d 708 (2009). 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. Taylor, 10-556 March 25, 2010 Page 4 In applying the provisions of the Ethics Act to the question you have posed, it is noted that Section 1103(a) of the Ethics Act does not prohibit public officials/public employees from having outside business activities or employment; however, the public official/public employee may not use the authority of his public position--or confidential information obtained by being in that position--for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89-011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official/public employee is associated in his private capacity or private client(s). Miller, Opinion 89-024; Kannebecker, Opinion 92-010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89-002. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation, and in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Based upon the submitted facts, you are advised as follows. The CDC would be considered a “business” as that term is defined in the Ethics Act. Rendell, supra. Section 1103(a) of the Ethics Act would not prohibit you from accepting full-time or part- time employment with the CDC in your private capacity while continuing to serve as a Borough Council Member and seeking election to the House. However, to the extent you would be a director, officer, or employee of the CDC, the CDC would be a business with which you are associated, and pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before Borough Council that would financially impact you or the CDC. In each instance of a conflict of interest, you would be required to abstain from participation, and in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Member of Council for McKees Rocks Borough (“the Borough”), 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. Based upon the submitted facts that: (1) you plan to seek election to the Pennsylvania House of Representatives (“House”) beginning in May 2010; (2) for the past two years, you have served on the board of a non-profit corporation named “McKees Rocks Community Development Corporation” (“the CDC”), having been appointed by the Borough Mayor to a non-executive/non-officer position; (3) you have been asked to consider a full-time or part-time paid position working for the CDC in the residential revitalization area; (4) the position would involve making new contacts, researching available funds, and instituting programs and plans to redevelop the community’s residential areas; (5) the Borough was not involved in the formation of the CDC; and (6) the position being offered to you would not be a Borough job, but rather, would be a job working directly for the CDC, you are advised as follows. Under the submitted facts, the CDC would be considered a “business” as that term is defined in the Ethics Act. Section 1103(a) of the Ethics Act would not prohibit you from accepting full-time or part-time employment with the CDC in your private capacity while continuing to serve as a Borough Council Member and seeking election to the House. However, to the extent you would be a director, officer, or employee of Taylor, 10-556 March 25, 2010 Page 5 the CDC, the CDC would be a business with which you are associated, and pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before Borough Council that would financially impact you or the CDC. In each instance of a conflict of interest, you would be required to abstain from participation, and in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of 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