Loading...
HomeMy WebLinkAbout17-515 Shorrawf =- STATE ETHICS COMMISSION 309 FINANCE BUILDING ?O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL March 21, 2017 To the Requester: Mr. Matthew Shorraw Dear Mr. Shorraw: 17 -515 This responds to your undated letter postmarked January 18, 2017, received January 20, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee ERR Act ("Ethics Act "), 65 Pa.C.S. § 1101 et se q., an individual who would be elected to public office in the City of Monessen would have a conflict of interest with regard to performing the duties of his public position, where the individual is employed as the Assistant Band Director at the Monessen Middle School /High School and also serves as President of the Monessen Amphitheater Committee. Facts: You request an advisory from the Commission based upon the following submitted facts. You are employed as the Assistant Band Director at the Monessen Middle School/High School in the Monessen City School District. You also serve as President of the Monessen Amphitheater Committee ( "the Committee "), which is a 501(c)(3) organization that plans events at the Monessen City Park Amphitheater. . You are considering seeking election to public office in the City of Monessen ("City "). The question that is presented is whether, if you would be elected to public office in the City, the Ethics Act would impose prohibitions or restrictions upon you with regard to performing the duties of your public position. Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of the s�1ct, 65 Pa.C.S. y§§ 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 FAX: (717) 787 -0806 0 Web Site: www.ethics.state. a.us 0 e -mail: ethics state. a.us Shorraw, 17 -515 a1V�rc t�21, 2017 Page 2 facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10 }, (11). An advisory only affords defense to the extent the requester has truthfully disc osed all of the material facts. If you would be elected to public office in the City, upon assuming such office, you would in that capacity be a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) 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. 0) 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(x) 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 Shorraw, 17 -515 arc 21, 2017 Page 3 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. "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. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferrin' with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting co —nom Section 11030) of the Ethics Act would require. the public official/public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In ap lying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Committee is a business with which you are associated in your capacity as an officer (President). Upon taking City public office, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act in your capacity as a public official in matter(s) that would financially impact you or the Committee. However, since the Monessen City School District is a "political subdivision" and not a "business" as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in your capacity as a ppublic official in matter(s) that would financially impact the Monessen Middle SchoollHigh School and/or the Shorraw, 17 -515 arc�1, 2017 Page 4 Monessen City School District 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 Monessen City School District 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. 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) 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 interpretation of the Ethics Act. Conclusion. Based upon the submitted facts that: (1) you are employed as the Assistant and Director at the Monessen Middle School /High School in the Monessen City School District; (2) you also serve as President of the Monessen Amphitheater Committee ( "the Committee "), which is a 501(c)(3) organization that plans events at the Monessen City Park Amphitheater; and 3) you are considering seeking election to public office in the City of Monessen ( "City'), you are advised as follows. If you would be elected to public office in the City, upon assuming such office, 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 sec . The Committee is a business with which you are associated in your capacity as an officer (President). Upon taking City public office, you generally would have a conflict of interest under Section 1103 (a) of the Ethics Act in your capacity as a public official in matter(s) that would financially impact you or the Committee. However, since the Monessen City School District is a "political subdivision" and not a "business" as defined by the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in your capacity as a public official in matter(s) that would financially impact the Monessen Middle School/High School and/or the Monessen City School District 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 Monessen City School District would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) 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 Shorraw, 17 -515 al�rc�1, 2017 Page 5 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 writingg and must be acts 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, XRo M. Hittie Chief Counsel