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HomeMy WebLinkAbout83-546 DavisMr. Raymond C. Davis Davis & Lewis 23 Maple Street Montrose, PA 18801 Mailin Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 May 23, 1983 ADVICE OF COUNSEL 83 -546 RE: Conflict of Interest; Councilmember; Voting for Raise for Spouse Dear Mr. Davis: This responds to your letter of March 18, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask, as Solicitor for a Borough, whether a councilwoman, whose husband is employed by the local police force, may vote on the Borough budget when that budget contains a raise for her husband. Facts: In a recent budget vote, the Borough Council voted on the budget in its entirety, rather than voting on that budget on a line -by -line item. A councilwoman, whose husband is employed by the local police force, also voted on the budget. That budget included a specific raise, for her husband of $900. She voted in favor of the budget. There were seven councilmembers present, and the vote included four yes votes and three no votes. You ask whether it was a conflict of interest for a councilwoman to have voted on the budget especially in light of the fact that the budget included a raise for her husband. Discussion: The Ethics Act, 65 P.S. 401 et. seq., regulates the conduct of public officials, such as the councilwoman, to assure the public of the independence and impartiality of its servants. Section 3(a) of the Act prohibits a public official from using his public office to obtain financial gain other than compensation provided by law for himself or a member of his immediate family. The primary purpose of the Act as set forth in Section 1 of the Ethics Act, 65 P.S. 401, is to strengthen public confidence in government by requiring that public officials avoid even the appearance of a conflict of interest. Thus, because Section 2 of the Act defines "immediate family" as State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Raymond C. Davis May 23, 1983 Page 2 including the spouse residing in the person's household as well as minor dependent children, Section 1 and 3(a) necessarily preclude the councilwoman from using her office to vote on whether or not the budget, which will include a raise to her husband, should be passed. Whether or not her vote was necessary for passage or would break the tie, it is necessary for her to abstain from voting on matters which inure to the benefit of her immediate family in such a direct and clear manner in order to comply with the Ethics Act. The reasons for her abstention must be disclosed and made part of the . public record. A solution to this particular problem would be to have the Borough Council vote on the budget not in its entirety, but on a line -by -line item. In this way the councilwoman would be able to vote on every item within the budget, except for the proposed raise for her husband. Although this process would be more time consuming than voting on the budget in its entirety, the councilwoman would be able to exercise her duties as councilwoman while at the same time avoiding both the conflict of interest and the appearance of a conflict of interest with the public trust. In the alternative, the Councilwoman should make it clear that her vote on the budget excludes voting for the item which will specifically and particularly benefit her spouse. Leete, 82 -005. Conclusion: The councilwoman in the future, in order to avoid even the appearance of a conflict of interest, may not vote to approve or disapprove a proposed raise in salary which will specifically benefit her husband. Whether her vote is a tie breaking vote or not, it is necessary for her to abstain from voting and to make public the reason for such abstention in order to comply with the Ethics Act. As stated above, the solution to this problem would be to vote on the budget, not in its entirety, but on a line -by -line item, or to otherwise indicate that her vote on the budget excludes voting on that portion of the budget which includes the raise to her husband. 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. Mr. Raymond C. Davis May 23, 1983 Page 3 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, andra S. Christianson General Counsel