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HomeMy WebLinkAbout90-506 BuehnerMr. John C. Buehner 210 Pine Street Sunbury, PA 17801 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 19, 1990 90 -506 Re: Conflict, Public Official, Immediate Family, Wife, City Council, Revitalization, Project Manager. Dear Mr. Buehner: This responds to your letter of December 22, 1989 and the letter of Michael M. Apfelbaum dated January 19, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon a city council member from voting or participating for his wife as project manager for a revitalization project. Facts: You have been elected to the council of the City of Sunbury with your term of office beginning on January 1, 1990 for a period of four years. Your wife Randi S. Buehner has been selected as the project manager for the Sunbury Revitalization, Inc. (SRI) which administers the City's Main Street Program funded by a state grant from the Department of Community Affairs (DCA). The SRI is a non - profit corporation organized under the laws of Pennsylvania. The Sunbury City Council neither was involved in the formation nor does it appoint the members of the board of directors of SRI. The City of Sunbury contracted with DCA for the Main Street grant on June 15, 1987 for the first years funding; on March 9, 1989 an amendment for the second year funding was executed between the city and DCA. On November 1, 1989 DCA and the City of Sunbury executed the third and final contract for the Main Street grant. All actions pertaining to the contracts and amendments were taken prior to your term of office. On September 24, 1986 the City and SRI entered into a cooperation agreement for the administration of the Main Street grant which occurred prior to your term of office. A copy of that agreement has been submitted. SRI has asked city council to Mr. John C. Buehner Page 2 approve the hiring of the project manager for which you are prepared to abstain from voting should the item appear on the council agenda. You would also abstain from voting on any issue related to SRI which would come before council. In addition, you would file a full disclosure of the employment situation and would not receive any grant money from the program. The project manager does provide a report of the activities of the Main Street grant during monthly council meetings. You conclude by requesting an advice as to whether your service on city council and your wife's service as project manager for SRI would be prohibited under the State Ethics Law. Discussion: As a city council member for Sunbury, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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 or his immediate family or a business with which he or a member of his immediate family is associated. Mr. John C. Buehner 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since your wife is in the familial relationship delineated above, Section 3(a) of the Ethics Law would prohibit you from voting or participating regarding the hiring of your wife as project manager for SRI as well as any other issues related to SRI that would come before council. Davis, Opinion 89 -012. If you were to vote or participate regarding the hiring of your wife to SRI or matters concerning SRI, such action would be a use of the authority of office to obtain a private pecuniary benefit to your wife in contravention of the Ethics Law. Thus, although the Ethics Law would not prohibit your service on council and your wife's employment as project manager, you could not participate or vote as to her employment or on matters involving SRI as noted above. In addition Section 3(j) of the Ethics Law would require you to publicly disclose your interests and file same in a written memorandum with the person responsible for recording the minutes. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As city council member of Sunbury, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit you from voting or participating regarding the appointment of your wife to SRI or matters involving SRI since she is a member of his immediate family as that term is defined under the Ethics Law. In addition, you must follow the requirements of Section 3(j) of the Mr. John C. Buehner Page 4 such. Ethics Law outlined above. Lastly the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent J. Dopko, Chief Counsel