HomeMy WebLinkAbout10-627 Woy
ADVICE OF COUNSEL
December 10, 2010
Brian N. Woy
224 Longview Drive
Irwin, PA 15642
10-627
Dear Mr. Woy:
This responds to your letter dated October 20, 2010, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether a borough council member’s service in the position of assistant
recording secretary or lieutenant of a volunteer fire department would form the basis of
a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), for the borough council member in matters
pertaining to the volunteer fire department.
Facts:
As a Member of Council for Manor Borough (“Borough”), you request an
advisory from the Pennsylvania State Ethics Commission. You have submitted facts
that may be fairly summarized as follows.
In addition to serving as a Borough Council Member, you are a member of the
Manor Volunteer Fire Department (“Fire Department”). You recently were
appointed/elected as Assistant Recording Secretary of the Fire Department. You state
that the position of Assistant Recording Secretary is considered an executive officer of
the Fire Department and that the Assistant Recording Secretary performs the duties of
the Recording Secretary when the Recording Secretary is not in attendance or is unable
to complete his work. You also have been nominated to serve in 2011 in the position of
Fire Department Lieutenant, which is one of the line officer positions in the chain of
command at a fire scene.
You state that the Borough and the Fire Department are separate entities. You
state that the Borough donates money to the Fire Department each year and helps with
equipment purchases.
Based upon the above submitted facts, you seek guidance as to whether service
in the position of Assistant Recording Secretary or Lieutenant of the Fire Department
would form the basis of a conflict of interest for you in matters before Borough Council
that would involve the Fire Department.
Woy, 10-627
December 10, 2010
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.
As a Borough Council Member, you are a public official as that term is defined in
the Ethics Act, and therefore you are 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 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
Woy, 10-627
December 10, 2010
Page 3
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.
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 conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
In addressing your specific question, the threshold issue is whether the Fire
Department would be considered a part of the Borough.
For purposes of the Ethics Act, depending upon the circumstances in a given
case, a fire company may be considered to be part of a governmental body/political
subdivision or a private entity. Among the most significant factors in determining the
status of a fire company is the degree to which the fire company is funded and
controlled by the governmental body/political subdivision, or alternatively raises its own
funds and governs itself.
In the instant matter, the submitted facts are insufficient to enable a conclusive
determination as to whether the Fire Department would be considered a private entity
and would not be considered a part of the Borough. Therefore, you are generally
advised as follows.
Woy, 10-627
December 10, 2010
Page 4
To the extent that the Fire Department would be considered a private entity and
would not be considered a part of the Borough, the Fire Department would be a
“business” as that term is defined by the Ethics Act, and to the extent that you would
serve in any position designated as an officer of the Fire Department, the Fire
Department would be a business with which you are associated. Accordingly, under
such circumstances, you would have a conflict of interest under Section 1103(a) of the
Ethics Act in matter(s) before Borough Council that would involve the Fire Department.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
To the extent that the Fire Department would not be considered a private entity
and would be considered a part of the Borough, absent a basis for a conflict of interest
such as a private pecuniary benefit to you, a member of your immediate family, or a
business with which you or a member of your immediate family is associated, you would
not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before
Borough Council that would involve the Fire Department.
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. Specifically not addressed herein is the applicability of
the Borough Code.
Conclusion:
As a Member of Council of Manor Borough (“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. The submitted facts are insufficient to enable
a conclusive determination as to whether the Manor Volunteer Fire Department (“Fire
Department”)--of which you are a member and Assistant Recording Secretary and have
been nominated to serve as a Lieutenant in 2011--would be considered a private entity
and would not be considered a part of the Borough. Therefore, you are generally
advised as follows.
To the extent that the Fire Department would be considered a private entity and
would not be considered a part of the Borough, the Fire Department would be a
“business” as that term is defined by the Ethics Act, and to the extent that you would
serve in any position designated as an officer of the Fire Department, the Fire
Department would be a business with which you are associated. Accordingly, under
such circumstances, you would have a conflict of interest under Section 1103(a) of the
Ethics Act in matter(s) before Borough Council that would involve the Fire Department.
In each instance of a conflict of interest, you would be required to abstain from
participation, which would include voting unless one of the statutory exceptions of
Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event
of a voting conflict.
To the extent that the Fire Department would not be considered a private entity
and would be considered a part of the Borough, absent a basis for a conflict of interest
such as a private pecuniary benefit to you, a member of your immediate family, or a
business with which you or a member of your immediate family is associated, you would
not have a conflict of interest under Section 1103(a) of the Ethics Act in matter(s) before
Borough Council that would involve the Fire Department.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Woy, 10-627
December 10, 2010
Page 5
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