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Home My WebLink About89-503 Bradley1 1 Ms. Teresa C. Bradley Bristol Township Councilwoman 100 State Road Croydon, PA 19020 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 7, 1989 89 -503 Re: Conflict of Interest, Borough Councilmember, Board Member of Non - Profit Industrial Development Corporation, Voting on Matters Relating to Non - Profit Industrial Development Corporation Dear Ms. Bradley: This responds to your letter of January 18, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a Borough Councilmember from voting on matters relating to a non - profit industrial development corporation as to which the councilmember may be appointed to the board. Facts: You state that you are an elected councilmember in Bristol Township and that there is a possibility that you will be appointed to the board of a non - profit industrial development corporation. If you are appointed, you question whether you would be permitted under the Ethics Act to vote on issues that would come before the Bristol Township Council involving the sale of township property to the corporation and further whether you could vote on a resolution which would allow the corporation to act as an agent for a state grant to help develop the same property. Finally, you question whether you may vote on a resolution relating to the corporation without first having it available for review prior to voting. Ms. Theresa C. Bradley February 7, 1989 Page 2 Discussion: As a Councilmember for Bristol Township, you are a public official within the definition of that term as set forth in the Ethics Act and the Regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political Ms. Theresa C. Bradley February 7, 1989 Page 3 contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph of Section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. 5403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. 5401. In applying the above provisions of the Ethics Act to the instant matter, although the Ethics Act would not preclude you from membership on the board of the non - profit industrial corporation, the Ethics Act would restrict you whenever any matters relating to that corporation would come before the township; in those latter instances, it would be necessary for you to abstain, note your abstention of public record together with the reasons for your abstention. Goodman, Opinion 88 -001. See also Leonard, 88 -008 where the Commission determined that a second class supervisor could not vote on matters before the township involving a landfill when the supervisor was part of a (9) Ms. Theresa C. Bradley February 7, 1989 Page 4 non - profit citizens group which actively opposed the landfill. In addition, the Commission determined in Welz, Opinion 86 -001 that a public official could not vote on matters where his interests would be considered as even indirect in nature. Therefore, although you would not be precluded from membership on the board of the non - profit industrial development corporation, you could not vote under Sections 3(a) and 3(d) of the Ethics Act on the issue of the sale of the township property to the corporation nor could you vote on the resolution allowing the corporation to act as an agent for a state grant. Regarding your third inquiry as to voting on a resolution without having it available for a review prior to voting, that question may not be addressed in this advice since it is beyond the scope of the Ethics Act. Lastly, 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: As a Councilmember in Bristol Township, you are a public official subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act, you would not be precluded from membership on the board of a non - profit industrial development corporation but you could not vote on the issue of the sale of township property to that corporation nor could you vote on a resolution allowing that corporation to act as agent for a state grant. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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. Ms. Theresa C. Bradley February 7, 1989 Page 5 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent J. Dopko, General Counsel