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Home My WebLink About82-504 KromkaMs. Mary Kromka Borough Secretary Ford City Borough P.O. Box 112 Ford City, PA 16226 Dear Ms. Kromka: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January 22, 1982 ADVICE OF COUNSEL 82 -504 RE: Council Member - Spouse is Police Officer - Possible Conflict; Council Member - Retired Banker - Borough Business with Bank This advice responds to your letter of December 22, 1981, in which you, as Borough Secretary of Ford City, requested information from the State Ethics Commission. Issue: Does the position of a council member's spouse in the Borough Police Department present a conflict of interest for the councilmember? May the council member participate in Council decisions involving the police department? May she serve on the Police Pension Funds Board? Does a council member's wish that council do business with his former employer present a conflict of interest in violation of the Ethics Act? Facts: A new member of the Ford City Borough Council took office in January 1, 1982. Her spouse serves the Borough as a police offier. The borough council deals directly with the police department on such items as contract negotiations for wages, promotion decisions, and disciplinary action. The borough council has also established a Police Pension Fund Board. The Board, comprised of two council members, two police officers, and one neutral resident, oversees investments for the Police Pension Fund. Receiving the state allocation and the weekly pension contribution of the officers, the Fund Board invests the money and deter- mines the amount of each year's pension. 53 P.S. §761. The Board's work is substantially independent, although it does submit semi - annual reports to Borough Council. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Ms. Mary Kromka January 22, 1982 Page 2 A second new Council member is a retired banker from Mellon Bank. The Borough Council sometimes does business with Mellon's Ford City branch. Because of his prior association with Mellon, the new Council member wishes Council to transact business with Mellon rather than with the other local bank. Discussion: As elected officials in a political subdivision of the State Legislature, both Council members are public officials subject to the restrictions and duties of the Ethics Act. In particular, the Act states that: No;.. public official ... shall use his public office or any confidential informa- tion 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. 5403(a). As applied to the council member whose spouse serves on the police force, Section 3(a) does not preclude her from voting on every item dealing with or indirectly affecting the police department. She may participate in routine and /or general decisions involving such matters as collective bargaining agreements, contract negotiations, and other actions similarly applicable to the police department as a whole. The member may not, however, participate in deci- sions that relate specifically and solely to her spouse as an individual within the department. She must abstain from voting, for example, on questions of promotions, disciplinary action, etc. for her spouse. Section 3(c) of the Ethics Act, 65 P.S. 403(c) states in part that no member of a public official's immediate family shall enter to any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process. This would not, however, apply retroactively to require that the employment contract between the Council member's spouse and the Borough of Ford City must be negotiated in an "open and public" manner. That contract existed prior to the new member's election to council and would not now be precluded or prohibited without compliance with Section 3(c) of the Ethics Act. Ms. Mary Kromka January 22, 1982 Page 3 In addition, Section 3(a) does not preclude this Council member from serving on the Police Pension Fund Board. As a member of the Board, she may consider, discuss, and vote on routine items of business and on policy decisions of general applicability to all pension candidates. She may not, however, participate in any discussions, votes or decisions regarding her husband's pension or other matters of direct individual interest to her husband. With respect to the Council member recently retired from Mellon Bank, the Ethics Act does not address the propriety of nor restrict his proposing that the Council transact business with his former employer. In Coughlin, 79 -063, the Ethics Commission held, "It is the duty of any member of the Township Council ... to abstain from parti- cipation'in a matter submitted by an employer of that public official," because such participation presents an appearance of a conflict of interest. In the present situation, the ex banker /Council member is no longer in a contractual employment relationship with Mellon Bank. He has no present connection with the Bank under the facts you presented that would suggest such a conflict per se. Knox, 81 -009. The absence of any potential or actual conflict is especially obvious in matters of a routine nature. The Council member's former employment by Mellon Bank would not bar his participa- tion, including his votes, in Council business involving the bank. We assume here that there has been no violation of Section 3(b) of the Ethics Act which prohibits the exchange of any "thing of value" to influence the official conduct of the Councilman. Conclusion: As discussed above, the Ethics Act does not prevent the two new members of the Ford City Borough Council from serving as members on it. It does, however, place some restrictions on the participation by the Council member whose husband is a Borough police officer. As a Council member and as a member of the Police Pension Fund Board, she must abstain from voting on any decisions that affect her husband individually. Such decisions might include matters of promotion, discipline, and his personal retirement pension. The Ethics Act does not prohibit the other Council member's particpation in decisions involving business transactions with Mellon Bank, his former employer. 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 requestbr has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Ms. Mark Kromka January 22, 1982 Page 4 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 request that the full Commission review this Advice. A personal appearance before the Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. BF /rdp Sincerely, Sandra S. rristianson General Counsel