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HomeMy WebLinkAbout12-564 Higbie ADVICE OF COUNSEL September 28, 2012 Glenn B. Higbie, Administrator Hellertown Borough Authority P.O. Box 81, 501 Durham Street Hellertown, PA 18055 12-564 Dear Mr. Higbie: This responds to your letters of July 16, 2012, and August 6, 2012, 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 impose any prohibitions or restrictions upon an administrator for a municipal authority, who has inherited a collection of unused U.S. Postal Service stamps, with regard to selling such stamps to the authority for general mailing purposes. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are employed as the Administrator for the Hellertown Borough Authority (“Authority”). You have submitted a copy of an Authority job description for the position of Administrator, which document is incorporated herein by reference. You recently inherited a collection of unused U.S. Postal Service (“USPS”) stamps (the “Stamps”) which generally date back to the 1980s and 1990s. You have checked with collectors, and you have determined that the Stamps are not collectible and are worth their face value. Unused USPS stamps with old postage rates cannot be returned to the USPS but may be used for postage. From time to time, the Authority purchases new USPS stamps for use in Authority business. You are interested in selling the Stamps to the Authority for it to use for general mailing purposes. You state that the Authority generally uses less than $100 per year for this type of postage, and that the amount that you would possibly sell to the Authority would be de minimis. You state that another Authority employee would verify the number and total value of the Stamps, the Treasurer of the Authority would initial each transaction, and the Stamps would be purchased through the Authority’s petty cash fund. Higbie, 12-564 September 28, 2012 Page 2 Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to selling the Stamps to the Authority. 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 the Administrator for the Authority, you are a public employee subject to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the submitted job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. 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: Higbie, 12-564 September 28, 2012 Page 3 § 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. 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. It is noted that the above statutory definition of the term “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. The Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In the past, the Commission has found amounts ranging from $2 to approximately $500 to be de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). An economic impact may aggregate over time, rather than be limited to a particular increment of time such as a month or year. Confidential Opinion, 05-001. For multiple transactions, the aggregate financial benefit received from such transactions should be considered in order to determine whether the de minimis exclusion could have applicability. Higbie, 12-564 September 28, 2012 Page 4 In applying the above provisions of the Ethics Act to your specific inquiry, you are advised that Section 1103(a) of the Ethics Act would not prohibit you from selling the Stamps to the Authority subject to the condition that the de minimis exclusion would be applicable. Specifically, Section 1103(a) of the Ethics Act would not prohibit you from selling the Stamps to the Authority where the total of such transactions would be less than $100 per year and the amount that you would receive would be the actual face value of the stamps. 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 Municipality Authorities Act. Conclusion: As the Administrator for the Hellertown Borough Authority (“Authority”), you are a public employee 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 recently inherited a collection of unused U.S. Postal Service (“USPS”) stamps (the “Stamps”) which generally date back to the 1980s and 1990s; (2) you have checked with collectors, and you have determined that the Stamps are not collectible and are worth their face value; (3) unused USPS stamps with old postage rates cannot be returned to the USPS but may be used for postage; (4) from time to time, the Authority purchases new USPS stamps for use in Authority business; (5) you are interested in selling the Stamps to the Authority for it to use for general mailing purposes; (6) the Authority generally uses less than $100 per year for this type of postage, and you state that the amount that you would possibly sell to the Authority would be de minimis; and (7) another Authority employee would verify the number and total value of the Stamps, the Treasurer of the Authority would initial each transaction, and the Stamps would be purchased through the Authority’s petty cash fund, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you from selling the Stamps to the Authority subject to the condition that the de minimis exclusion as set forth in the Ethics Act’s definition of “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, would be applicable. Specifically, Section 1103(a) of the Ethics Act would not prohibit you from selling the Stamps to the Authority where the total of such transactions would be less than $100 per year and the amount that you would receive would be the actual face value of the stamps. 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 Higbie, 12-564 September 28, 2012 Page 5 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