Loading...
HomeMy WebLinkAbout13-584 Naugle ADVICE OF COUNSEL December 6, 2013 Susan Naugle 650 Red Patch Avenue Gettysburg, PA 17325 13-584 Dear Ms. Naugle: This responds to your letter dated November 6, 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 prohibitions or restrictions upon an individual who is serving as both a borough council member and a member of a municipal authority board with regard to: (1) voting in either or both of her aforesaid capacities on an issue that would be before both the borough council and the municipal authority board; or (2) voting as a borough council member on appointments or reappointments of authority board members. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You are a Member of Council for Gettysburg Borough (“Borough”). You are also a Member of the Board of the Gettysburg Municipal Authority (“Authority”), which was created by the Borough. You were appointed to the Authority Board by Borough Council for a term which began in January 2013. You state that you may find yourself in a position to vote on an issue that would be before both Borough Council and the Authority Board. Such an issue may include votes by both entities pertaining to Borough-guaranteed borrowing by the Authority to fund Authority projects or votes by both entities regarding an agreement between the two entities to address relationship, interaction, and cooperative efforts. Based upon the above submitted facts, you pose the following questions: (1) Whether you would have a conflict of interest with regard to voting in your capacity as a Borough Council Member and/or in your capacity as an Authority Board Member on an issue that would be before both Borough Council and the Authority Board; and Naugle, 13-584 December 6, 2013 Page 2 (2) Whether you should recuse yourself from voting as a Borough Council Member on appointments or reappointments of Authority Board Members. 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. In each of your positions as a Borough Council Member and an Authority Board 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 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 Naugle, 13-584 December 6, 2013 Page 3 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Having established the above general principles, your specific questions shall now be considered. In response to your first question, you are advised as follows. You would not have a conflict of interest under Section 1103(a) of the Ethics Act: (1) in your capacity as a Borough Council Member in matters that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated; or (2) in your capacity as an Authority Board Member in matters that would financially impact the Borough but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. A pecuniary benefit flowing solely to a governmental entity--such as the Borough or the Authority--would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. Naugle, 13-584 December 6, 2013 Page 4 Therefore, 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, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in voting as a Borough Council Member on issue(s) that would involve the Authority and/or in voting as an Authority Board Member on issue(s) that would involve the Borough. In response to your second question, you are advised that absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act or an improper understanding contrary to Section 1103(b) or Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit you from voting on appointments or reappointments of Authority Board Members. Generally, you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act as to your own appointment/reappointment to a compensated position. This advisory does not address whether, pursuant to the Borough Code, a borough council member serving on a municipal authority created by the borough may be compensated for such service. See, 53 P.S. § 46104(a); Cf., Trzcianka, Advice 08-542 at 4-5. 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 or the Municipality Authorities Act. Conclusion: Based upon the submitted facts that: (1) you are a Member of Council for Gettysburg Borough (“Borough”); (2) you are also a Member of the Board of the Gettysburg Municipal Authority (“Authority”), which was created by the Borough; (3) you were appointed to the Authority Board by Borough Council for a term which began in January 2013; (4) you may find yourself in a position to vote on an issue that would be before both Borough Council and the Authority Board; and (5) such an issue may include votes by both entities pertaining to Borough-guaranteed borrowing by the Authority to fund Authority projects or votes by both entities regarding an agreement between the two entities to address relationship, interaction, and cooperative efforts, you are advised as follows. In each of your positions as a Borough Council Member and an Authority Board Member, 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. You would not have a conflict of interest under Section 1103(a) of the Ethics Act: (1) in your capacity as a Borough Council Member in matters that would financially impact the Authority but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated; or (2) in your capacity as an Authority Board Member in matters that would financially impact the Borough but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. 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, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in voting as a Borough Council Member on issue(s) that would involve the Authority and/or in voting as an Authority Board Member on issue(s) that would involve the Borough. Absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act or an improper understanding contrary to Section 1103(b) or Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit you from voting on appointments or reappointments of Authority Board Members. Generally, you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act as to your own appointment/reappointment to a compensated position. This advisory does not Naugle, 13-584 December 6, 2013 Page 5 address whether, pursuant to the Borough Code, a borough council member serving on a municipal authority created by the borough may be compensated for such service. 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