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HomeMy WebLinkAbout82-602 HinishMr. Howard C. Hinish Bedford County Commissioner 203 South Juliana Street Bedford, PA 15522 Dear Mr. Hinish: RE: Expenses; Abstention; Discretion Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 21, 1982 ADVICE OF COUNSEL 82 - 602 This responds to your letter of September 10, 1982, at which time you, as a Bedford County Commissioner, requested advice from the State Ethics Commission. Issue: You ask whether, as a Bedford County Commissioner, you may vote, as one of three Commissioners, to pay expenses incurred by you. Facts: One of the three Bedford County Commissioners has refused to approve expenditures incurred by you as a result of you attending several functions concerning Bedford County. The sum of these expenditures is $101.20. While one Commissioner refuses to approve paying you your expenses, the other Commissioner would approve the reimbursement. You, as the third Commissioner, would like to cast a vote in favor of payment but you are concerned about the legality or propriety of such an action. Discussion: The State Ethics Act, 65 P.S. §401 et seq., requires that the conduct of public officials "present neither a conflict nor the appearance of a conflict with the public trust." In this regard, it is clear that your ability to vote in this matter is of a limited nature. As the Commission understands the facts as presented, the matter at hand may be separated into three distinct questions; (1) Whether commissioners are routinely reimbursed for expenses arising out of official duties; (2) Whether the expenses herein were incurred as a result of official business; and (3) Given (1) and (2) whether those expenditures shall be reimbursed with your participation. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Howard C. Hinish December 21, 1982 Page 2 With regard to the first question, whether commissioners are to be reimbursed for official expenses, if the answer to that question is not a routine "yes ", then you may not participate in that decision. Your inability to engage in this particular area of discussion stems from Section 3(a) and Section 1 of the Ethics Act, which provide that a public official may not use his public office to procure financial gain other than that provided by law. If, however, it is routine to reimburse Commissioners for official expenditures and such reimbursement is not subject to discretion, the question becomes whether the expenditures herein were incurred as a result of official business. If it is not clear that your expenditures were incurred as a result of official business or if there is an initial determination to be made as to whether such expenses were incurred as part of your official duties and are thus properly reimburseable, you may not participate in the decision for the same reasons given for question (1). We cannot make any definitive ruling on this point with respect to the particular expenses referred to in your request as this appears to be a question to be properly addressed to the Commissioners themselves. If these expenses are not clearly, considered "official" by policy or past practice or other directive, there appears to be a degree of discretion involved in whether or not to reimburse. Only if Commissioners may be reimbursed for official expenses and your expenses were without question or discretionary judgment permitted as to the fact of reimbursement, the amount thereof, or as to whether they were incurred as a result of official business, can you vote upon whether to reimburse yourself. Where questions (1) and (2) are clearly of a non - discretionary nature as to whether reimbursement is appropriate and the amount thereof, you may vote because the basic questions are ministerial. In its Opinion in Stewart, 79 -070, the Commission considered the question of whether certain school board directors should abstain from voting on uncontested bill payments to the employer of a director. Finding that the routine payment of bills was not in dispute, the Commission imposed no limitation on the directors in that regard. Conclusion: Where it is routine to reimburse Commissioners for official expenses and where such expenses without question -- as set forth in general County practice, policy or procedures and the amounts thereof are to have been incurred in the pursuit of official business, you, as a Commissioner, may vote on whether to approve routine reimbursements to yourself. You may not, however, vote on the questions of whether your expenditures were incurred as a result of official business and thus routinely or properly reimbursible or to Mr. Howard C. Hinish December 21, 1982 Page 3 set the amount thereof unless the action is not subject to any exercise of your discretion. It seems that a general policy or procedure on the question of what expenses are considered official and, therefore, reimburseable can or should be developed so that the questions of reimbursement may be made clear and ministerial. 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. 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. CW /rdp Sincerely, Sandra S. C istianson General Counsel