HomeMy WebLinkAbout13-544 Myers
ADVICE OF COUNSEL
June 5, 2013
Robert M. Myers
308 W. 2nd Street
Birdsboro, PA 19508-2213
13-544
Dear Mr. Myers:
This responds to your undated letter received May 3, 2013, by which you
requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, upon assuming office as a borough council member, an
individual would have a conflict of interest pursuant to Section 1103(a) of the Public
Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), in matters before
borough council pertaining to a community center that employs his spouse.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows. You are seeking
election in 2013 as a Member of Council for Birdsboro Borough (“Borough”). Your
spouse is employed as the Program Director of the Birdsboro Community Memorial
Center (“Community Center”). Each year, Borough Council makes a contribution to the
Community Center. You state that if you are elected as a Borough Council Member,
you intend to abstain from any and all votes in matters that may affect the Community
Center. You ask whether abstaining from any and all matters that might affect the
Community Center would be the right thing to do, even if not legally required.
It is administratively noted that, per the Pennsylvania Department of State web
site, the Community Center is a non-profit entity.
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 pursuant to the same aforesaid Sections of the
Ethics Act, this advisory is necessarily limited to addressing your inquiry from the
perspective of your duties under the Ethics Act.
Myers, 13-544
June 5, 2013
Page 2
Upon taking office as a Borough Council Member, you would in that capacity be
a public official subject to 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.
Myers, 13-544
June 5, 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.
"Immediate family."
A parent, spouse, child, brother
or sister.
"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 applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Your spouse is a member of your immediate family as that term is defined in the
Ethics Act.
The Ethics Act’s definition of the term “business” includes non-profit entities.
See, Rendell v. State Ethics Commission, 603 Pa. 292, 983 A.2d 708 (2009). Based
upon the submitted facts, the Community Center is a business with which your spouse
is associated in her capacity as an employee.
As a Borough Council Member, you generally would have a conflict of interest
under Section 1103(a) of the Ethics Act in matters before Borough Council that would
financially impact you, your spouse, or the Community Center. As noted above, 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.
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
Myers, 13-544
June 5, 2013
Page 4
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the Borough Code.
Conclusion:
Upon taking office as a Council Member of Birdsboro Borough
(“Borough”), you would in that capacity be a public official subject to the provisions of
the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
Your spouse is a member of your immediate family as that term is defined in the Ethics
Act. The Birdsboro Community Memorial Center (“Community Center”) is a business
with which your spouse is associated in her capacity as an employee. As a Borough
Council Member, you generally would have a conflict of interest under Section 1103(a)
of the Ethics Act in matters before Borough Council that would financially impact you,
your spouse, or the Community Center. 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. 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