HomeMy WebLinkAbout13-543 Rudloff
ADVICE OF COUNSEL
June 4, 2013
Michele C. Rudloff
240 East Market Street
Orwigsburg, PA 17961
13-543
Dear Ms. Rudloff:
This responds to your letter dated April 23, 2013, 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 a borough
council member, who in a private capacity is a member of the local Lions Club, with
regard to participating in discussions or votes by borough council pertaining to the local
Lions Club’s proposal to use a community building to hold meetings and other events.
Facts:
As a Member of Council for Orwigsburg Borough (“Borough”), you request
an advisory from the Pennsylvania State Ethics Commission based upon the following
submitted facts.
You are a Member of the Orwigsburg Lions Club (“Lions Club”). The Lions Club
submitted a proposal to Borough Council to use a community building (“the Community
Building”) to hold meetings and other events. The Lions Club desires to discuss the
aforesaid proposal with Borough Council during a regularly scheduled meeting, and it is
anticipated that Borough Council will have to formally act on the proposal.
You ask whether the Ethics Act would permit you to participate in discussions
and vote(s) by Borough Council regarding the Lions Club’s proposal to use the
Community Building, and if so, what disclosures you would be required to make prior to
such vote(s).
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.
Rudloff, 13-543
June 4, 2013
Page 2
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).
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
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.
Rudloff, 13-543
June 4, 2013
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.
"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.
"Financial interest."
Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
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 applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Based upon the submitted facts, the Lions Club is not a business with which you
are associated because you are not a director, officer, owner, employee, or holder of a
financial interest in the Lions Club. Your membership in the Lions Club would not in and
of itself form the basis for a conflict of interest for you under the Ethics Act in matters
that would financially impact the Lions Club.
Accordingly, you are advised that absent some 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, Section
1103(a) of the Ethics Act would not prohibit you from participating in discussion(s) or
vote(s) by Borough Council regarding the Lions Club’s proposal to use the Community
Building, and you would not be required to make disclosures pursuant to 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
Rudloff, 13-543
June 4, 2013
Page 4
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 for Orwigsburg 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. Based upon the submitted facts that: (1)
you are a Member of the Orwigsburg Lions Club (“Lions Club”); (2) the Lions Club
submitted a proposal to Borough Council to use a community building (“the Community
Building”) to hold meetings and other events; and (3) the Lions Club desires to discuss
the aforesaid proposal with Borough Council during a regularly scheduled meeting, and
it is anticipated that Borough Council will have to formally act on the proposal, you are
advised as follows.
The Lions Club is not a business with which you are associated because you are
not a director, officer, owner, employee, or holder of a financial interest in the Lions
Club. Your membership in the Lions Club would not in and of itself form the basis for a
conflict of interest for you under the Ethics Act in matters that would financially impact
the Lions Club. Absent some 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, Section 1103(a) of the Ethics Act would
not prohibit you from participating in discussion(s) or vote(s) by Borough Council
regarding the Lions Club’s proposal to use the Community Building, and you would not
be required to make disclosures pursuant to Section 1103(j) of the Ethics Act. 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