HomeMy WebLinkAbout86-538 NeffRichard L. Neff, Esquire
2422 Mill Street
Aliquippa, PA 15001
Dear Mr. Neff:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 16, 1986
86 -538
Re: Conflict of Interest, Borough Councilmember Voting on Ordinance Affecting
Member
This responds to your letter of March 24, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether, within the purview of the State Ethics Act, a member of
borough council may participate in the borough's consideration of an ordinance
increasing the pension benefits for borough retirees when the member of
borough council will he affected thereby.
Facts: You have advised that you are the Solicitor for the Borough of
Aliquippa. In this respect, you have been authorized to request an opinion
from the State Ethics Commission regarding the borough council's consideration
of a particular ordinance. The Aliquippa Borough Council is currently
considering the adoption of an ordinance that would increase the monthly
pension benefits that are paid to some retired members of the borough police
department. The ordinance, as proposed, would increase the percentage of
monthly benefits received by the retirees at three different levels depending
upon the date on which they retired. You have advised that one of the members
of the borough council is a retired policeman who would benefit from the
proposed increases. You have, thus, requested the advice of the State Ethics
Commission in order to determine if there would be any prohibitions upon this
borough councilmember's participation in this matter within the purview of the
State Ethics Act.
Discussion: As a member of borough council, this individual is a public
official as that term is defined in the State Ethics Act. 65 P.S. 5402. As
such, his conduct must conform to the requirements thereof. Kilmer, 79 -037;
Davis, 84 -012.
Richard L. Neff, Esquire
April 16, 1986
Page 2
Generally, the State Ethics Act provides as follows:
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).
Within this provision of law, no public official may use their position in
order to obtain any financial gain for themselves. Within this provision of
law, this Commission has on a number of occasions adddressed issues where
public officials have voted or attempted to vote in matters relating to their
own personal pecuniary interests. In those matters, the Commission has
uniformly determined that a public official may not participate to any extent,
in a matter that would affect their own financial interests. See Israel,
85 -590; Mohan, 85 -587; Denhart, 85 -592. More recently, the Commission has
determined that even in a situation where a public official is eligible to
obtain certain benefits or hold a certain position by statute, that official
must not participate i n his own appointment to said position. See King,
85 -025. The opinion of the Commission in these matters has been based upon
the long standing common law concept that wherever a public official has a
direct personal interest in a matter under consideration by the public body on
which they are a member, such official is disqualifed from voting thereon and
if his vote is determinative, the action is void. See Reckner et. al . , v.
Germantownship School District, 341 Pa. 369, 19 A.2d 402, (1941); McCreary v.
Major, 343 Pa. 355, 22 A.2d 686, (1941); Genkinger v. Newcastle, 368 Pa. 547,
84 A.2d 303, (1951).
This concept would be applicable not only under the previously cited
section of the State Ethics Act but under Section 403(d) of the Act as well.
65 P.S. §403(d). That section provides that the Commission may address other
areas of possible conflicts of interests. Generally, such a conflict develops
when a public official or employee attempts to serve one or more interests
that are adverse. Alfano, 80 -007; Nelson, 85 -009. Generally, as a public
official, the individual in this situation is obligated to serve the public
trust. In this respect, he must determine as a member of borough council,
whether the adoption of this particular ordinance increasing the pension
benefits for retired police officers is within the best financial interest of
the borough. On the other hand, however, he is a member of the class of
individuals who stands to have increase monthly payments awarded to them if
the ordinance is passed. In this respect, his own financial interest would be
benefitted though the adoption of the ordinance. There is no doubt that in
this situation, there is a conflict between the interest he serves as a public
official, i.e. the public, and his own financial interest. As such, there is
Richard L. Neff, Esqui re
April 16, 1986
Page 3
no doubt that he must abstain from participating in the borough's review,
consideration, and adoption of this particular ordinance. Additionally, his
abstention in this matter should be publicly noted and recorded in the
appropriate minutes of the borough.
C. Conclusion: The State Ethics Act would require that a member of borough
council abstain from participating in the borough's adoption of an ordinance
that increases the monthly pension benefits paid to retired borough police
officers, when said member of borough council is a retired officer who will
receive benefits under said ordinance. The councilmembers abstention, in such
matter, should be publicly noted and recorded in the appropriate borough
minutes. The reason for his abstention should also be noted.
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 proceedi ng, providi ng 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.
Si n
John J. .ntino
Gener Counsel