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HomeMy WebLinkAbout86-561 SpencerMs. Mary A. Spencer 926 First Street Baden, PA 15005 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 May 20, 1986 ADVICE OF COUNSEL Re: Borough Councilmemher Participating, Pay Increase, Son Dear Ms. Spencer: 86 - 561 This responds to your letter of April 18, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act places any prohibition upon your participation as a borough councilmemher in the council's decision to increase the pay of the borough police officers, when your son is a member of the police department. Facts: You currently serve as a member of the Baden Borough Council in Beaver County, Pennsylvania. You also serve as Chairman of the Finance Committee. You have advised that the borough council has been considering raising the pay of the borough's part -time police officers. During the last meeting of borough council, you seconded the motion to increase the salary of the police officers. Another member of borough council, however, objected to your participation in this matter in that your son is employed by the borough as a part -time police officer and would be affected by the pay raise. As a result, you withdrew your second and abstained from voting. You have, however, requested the advice of the State Ethics Commission in relation to this situation in that you do not believe that a conflict of interest is involved in this situation. You advise that you son is not a member of your household, he's an adult and not a minor dependent. You advise that he does not contribute to your household nor do you to his household. Discussion: As a member of borough council, you are clearly a public official as that term is defined in the State Ethics Act. 65 P.S. X402. As such, your conduct, as a public official, must conform to the requirements of the State Ethics Act. Davis, 84 -012. Ms. Mary A. Spencer May 20, 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 the above provision of law, no public official may use their public position in order to obtain a financial gain for themselves or for a member of their immediate family. A public official may not use confidential information obtained through their public position for similar purposes. The State Ethics Act defines member of one's immediate family as follows: - Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Clearly, from the above definition, it appears as though your son would not be a member of your immediate family as he is not a minor dependent residing in your household. As a result, the provisions of Section 403(a) of the State Ethics Act would not appear to prohibit your participation in the council's vote to increase the salary of the part -time police officers even though your son may be a member of the police force. In addition to the foregoing provision of law, however, the State Ethics Act also allows this Commission to address other areas of possible conflict. 65 P.S. §403(d). Generally, this provision of law would prevent a public official from participating in situations wherein the. official is serving one or more interest that may be adverse. See, Alfano, 80 -007. Generally, the parameters of the type of activity encompassed by this provision of law, generally have been reviewed in light of the preamble to the Ethics Act, which enunciates the legislative intent of the Act. 65 P.S. §401. Within this provision, a public employee or official is to ensure that their personal financial interest do not present a conflict of interest with the public trust. See, Nelson, 85 -009. As a result of this provision of law and in light of the intent of the State Ethics Act, this Commission has, on a number of occasions, determined that the definitional limitations applicable to Section 3(a) of the State Ethics Act is not relevant to questions that arise under Section 403(d) or Section 1 of the Act. As a result, this Commission has previously determined that it would be the better practice for a public official to abstain from participating in matters that involve their adult Ms. Mary A. Spencer May 20, 1986 Page 3 son, O'Reilly, 83 -012; their adult daughter, Cumberledge, No. 216 -R or their sister, Leete, 82 -005. Thus, within these previously determined opinions of the Commission, it would be the better practice for you to abstain from participating in a matter wherein your son may be affected by the borough council 's decision. It should be noted that in relation to the above, your complete abstention may not be required. This is so particularly in light of the fact that it appears as though the benefit that would enure to your son, would not be one of a unique nature. The Commission has, in the past, reviewed situations where public officials were called upon to decide matters regarding collective bargaining agreements wherein their spouses or other relatives were members of the bargaining unit. In those particular situations, the Commission determined that while the public official would be prohibited from participating in the negotiations and discussions regarding the terms of collective bargaining agreement, the official would not be prohibited from voting upon the final agreement submitted for ratification after it has been negotiated and drafted. See, Krier, 84 -002, Blaney, 84 -003. Thus, in the instant situation, you should abstain from participating in the borough council's discussions as to the terms and conditions of the amount of money or other benefits to be accorded to the borough police officers generally. You should not participate in any of these discussions or negotiations. You may, however, vote upon the final agreement that is submitted for ratification by the borough council if you have not participated in the structuring of that particular agreement. We note that the above is applicable only insofar as your son is affected as a member of the class generally. If the agreement in anyway accords some benefit to your son that is unique or different in nature, then that which is accorded to the group of officers generally, then it would be the better practice for you to abstain completely from participating in the final adoption of that agreement. Conclusion: Section 403(a) of the Ehtics Act would not prohibit your participation in the borough council's decision to grant a pay increase to the borough police officers, when your adult son is a member of that group. Section 403(d) of the Ethics Act, however, and prior opinions of the Commission, indicate that it would be the better practice for you to abstain from the negotiations, discussions and drafting of a final proposal of . benefits to be accorded to the police officers. If you have not participated in such matters, then you may participate even under Section 403(d) of the Act in the borough's final ratification of the agreement that has been drafted by the other members of the council. As noted above, this is so, only insofar as the final agreement submitted for ratification does not affect your son in some unique way. Ms. Mary A. Spencer May 20, 1986 Page 4 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. oh Gen al Counsel 0