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HomeMy WebLinkAbout88-502 VerteranoMs. Elizabeth M. Verterano 901 N. Mercer Street New Castle, PA 16101 Dear Ms. Verterano: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 3, 1988 • 88 -502 Re: Conflict of Interest, County Commissioner, Member of Governing Board of Allied Human Services, Block Grant Funds This responds to your letter of December 30, 1987, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a county commissioner from simultaneously serving and participating as a governing board member of an organization wherein the commissioner's spouse's partner is a solicitor for the organization and wherein the commissioner's spouse's other partner is a member of the governing board of that organization. Facts: You state that as of January 4, 1988, you will be sworn into office as a member of the Board of Lawrence County Commissioners. You state that the county commissioners serve as members of the governing board of directors of Allied Human Services which is an organization comprised of a number of other corporations. It appears that Allied Human Services Association Inc., hereinafter Allied, is a non - profit corporation which was created to implement and administer programs to counter the community cultural and physical deterioration and joblessness. You note that Allied is the agency which administers the community development block grant funds on behalf of Lawrence County. In this regard, you state that one of the partners from your husband's private law firm serves as a solicitor to Allied and that another partner in the firm sits as a member of the governing board of Allied. You then pose three questions under the Ethics Act. First, you inquire as to whether you as a member of the board of county commissioners may also sit as a voting member of Allied's governing board in light of the fact that the commissioners vote to decide which agency will receive the community development block grant funds. Secondly, you ask whether you can vote on matters involving Allied such as funding, contracting or approving payments of bills when you serve as a member of the board of county commissioners. Lastly, you ask that if you were not to sit on Allied's governing board, what restrictions would be imposed upon you as a member of the board of county commissioners relative to matters involving Allied. Ms. Elizabeth M. Verterano February 3, 1988 Page 2 Discussion: As a county commissioner, you are a "public official" as that term is defined in the Ethics Act. 65 P.S. §402. As such, your conduct must conform to the provisions of that Act. Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Comm. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes Opinion, 85 -010. "Immediate family" is defined under the Ethics Act as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. You husband, of course, fits within the above definition of immediate family. Under Section 3(a) of the Ethics Act, there is no per se prohibition to your simultaneous service as a county commissioner and member of the governing board of Allied. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve as a governing board member. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that you may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano Opinion, 80 -007. Ms. Elizabeth M. Verterano February 3, 1988 Page 3 However, under Section 3(d) of the Ethics Act, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials do not conflict with the public trust or create the appearance of a conflict with the public trust. Therefore, under Section 3(d) of the Ethics Act, you as county commissioner should not participate or vote in any matter involving Allied; further, you as county commissioner should not participate in any determination as to development block grant funds. Lastly, in the above two areas, you should note you abstention of public record as well as the reason for your abstention. In this regard, the Ethics Commission has determined that a public official must recuse himself in situations where there is a conflict or the potential for a conflict of interest. 65 P.S. §401. In Welz Opinion, 86 -001, the State Ethics Commission determined that a public official could not participate in matters where his outside interest could be considered as being even indirect in nature. You are not prohibited from simultaneously serving as county commissioner and member of the governing board of Allied under • Section 3(a) of the Ethics Act; however, under Section 3(d) of the Ethics Act you must abstain from participating in matters involving Allied or community development block grant funds and you should note your abstention of public record together with the reasons for your abstention. As to your last question, if you would not accept a seat on Allied's governing board, that would not modify the advice. The two partners in your spouse's law firm would still have their association with Allied which administers the community development block grant funds and you as county commissioner, unless you would recuse yourself, would be passing upon matters involving Allied and community development block grant funds. Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: As a county commissioner for Lawrence County, you are a "public official" subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act there is no per se prohibition to your simultaneous service as a county commissioner and member of the governing board of Allied. Under Section 3(d) of the Ethics Act, you may neither participate nor vote on any matter concerning Allied or community development block grant funds and your abstention in these two areas must be noted of public record together with the reason for your abstention. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. Ms. Elizabeth M. Verterano February 3, 1988 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 crimi nal 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 w i l l 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. Sincerely, Vincent J. Dopko General Counsel