HomeMy WebLinkAbout14-522 Howard
ADVICE OF COUNSEL
May 23, 2014
Honorable Robert V. Howard
Mayor of the City of St. Marys
110 Wehler Road
St. Marys, PA 15857
14-522
Dear Mayor Howard:
This responds to your letter dated March 28, 2014, 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 a city mayor with
regard to receiving reimbursement for reasonable and actual expenses incurred for
performing marriage ceremonies.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You were elected as Mayor of the City of St. Marys (“City”), and your term of
office began on the first Monday of January 2014. As City Mayor, you are authorized to
perform marriage ceremonies under Section 1503(a)(5) of the Pennsylvania Domestic
Relations Code, 23 Pa.C.S. § 1503(a)(5). You state that you might be asked to perform
marriage ceremonies outside of the City’s boundaries and at remote locations within the
county which are fifteen or more miles from your home in the City.
The City is governed by a Home Rule Charter (“Charter”). Pursuant to the
Charter, the City Mayor is a Member of the City Council. Section 305(d) of the Charter
provides that City Council Members shall be entitled to reimbursement for their
reasonable expenses incurred in the performance of their duties.
You seek guidance as to whether the Ethics Act would permit you to receive
reimbursement for actual expenses incurred for performing marriage ceremonies as
City Mayor, and if so, whether you would be permitted to deduct those expenses from
payments received for performing marriage ceremonies before turning such payments
over to the City.
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
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May 23, 2014
Page 2
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 City Mayor, you are a public official subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a)Conflict of interest.--
No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
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
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.
Section 1103(d) of the Ethics Act provides as follows:
§ 1103. Restricted activities.
(d) Honorarium.--
No public official or public
employee shall accept an honorarium.
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May 23, 2014
Page 3
65 Pa.C.S. § 1103(d).
The Ethics Act defines the term “honorarium” as follows:
§ 1102. Definitions
"Honorarium."
Payment made in recognition of
published works, appearances, speeches and presentations
and which is not intended as consideration for the value of
such services which are nonpublic occupational or
professional in nature. The term does not include tokens
presented or provided which are of de minimis economic
impact.
65 Pa.C.S. § 1102.
In applying the above provisions of the Ethics Act to your inquiry, you are advised
as follows.
Reimbursements to you of reasonable and actual expenses incurred in
performing marriage ceremonies would not constitute a private pecuniary benefit
contrary to Section 1103(a) of the Ethics Act or honoraria prohibited by Section 1103(d)
of the Ethics Act. Such reimbursements would merely make you whole as to expenses.
Cf., Moore, Opinion 04-004; Confidential Opinion, 97-012; Rehmeyer & Smith/Green,
Advice 07-522. You are advised that neither Section 1103(a) nor Section 1103(d) of the
Ethics Act would prohibit you from receiving reimbursement for reasonable and actual
expenses incurred in performing marriage ceremonies. You are further advised that the
question of whether you would be permitted to deduct such expenses from payments
received for performing marriage ceremonies before turning such payments over to the
City would be governed by the Charter, the City Code of Ordinances, or City
policies/procedures, not the Ethics Act. Since the Pennsylvania State Ethics
Commission does not have the statutory jurisdiction to interpret the Charter, the City
Code of Ordinances, or City policies/procedures, it is recommended that you obtain
legal advice as to same.
The propriety of the proposed conduct has only been addressed under the Ethics
Act.
Conclusion:
Based upon the submitted facts that: (1) you were elected as Mayor
of the City of St. Marys (“City”), and your term of office began on the first Monday of
January 2014; (2) as City Mayor, you are authorized to perform marriage ceremonies
under Section 1503(a)(5) of the Pennsylvania Domestic Relations Code, 23 Pa.C.S. §
1503(a)(5); (3) you might be asked to perform marriage ceremonies outside of the City’s
boundaries and at remote locations within the county which are fifteen or more miles
from your home in the City; (4) the City is governed by a Home Rule Charter (“Charter”);
(5) pursuant to the Charter, the City Mayor is a Member of the City Council; and (6)
Section 305(d) of the Charter provides that City Council Members shall be entitled to
reimbursement for their reasonable expenses incurred in the performance of their
duties, you are advised as follows.
As City Mayor, 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.
Reimbursements to you of reasonable and actual expenses incurred in performing
marriage ceremonies would not constitute a private pecuniary benefit contrary to
Section 1103(a) of the Ethics Act or honoraria prohibited by Section 1103(d) of the
Ethics Act. Such reimbursements would merely make you whole as to expenses.
Neither Section 1103(a) nor Section 1103(d) of the Ethics Act would prohibit you from
receiving reimbursement for reasonable and actual expenses incurred in performing
Howard, 14-522
May 23, 2014
Page 4
marriage ceremonies. The question of whether you would be permitted to deduct such
expenses from payments received for performing marriage ceremonies before turning
such payments over to the City would be governed by the Charter, the City Code of
Ordinances, or City policies/procedures, not the Ethics Act. Since the Pennsylvania
State Ethics Commission does not have the statutory jurisdiction to interpret the
Charter, the City Code of Ordinances, or City policies/procedures, it is recommended
that you obtain legal advice as to same. 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