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HomeMy WebLinkAbout88-502A 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 March 15, 1988 SUPPLEMENTAL ADVICE OF COUNSEL 88 -502A Re: Conflict of Interest, County Commissioner, Member of Governing Board of Allied Human Services, Block Grant Funds This responds to your letter of February 16, 1988, in which you requested additional advice from the State Ethics - Commission. Issue: Whether the Ethics Act imposes any restrictions or prohibitions upon a county commissioner regarding voting as to an organization of which the county commissioner serves as a member of its governing board of directors when the solicitor of that organization is a partner to the spouse of the commissioner and when another member of the board of directors is also a member of the law firm of the spouse of the commissioner. Facts: You were issued an Advice of Counsel, No. 88 -502, dated February 3, 1988, which is incorporated herein by reference. Following the receipt of the foregoing advice, you ask for additional advice by letter of February 16, 1988. You pose several specific questions relating to your position as a county commissiner and member of the governing board of Allied Human Services which administers the CDBG Funds in the county. Your concerns relate to the applicability of the Ethics Act to you both because the solicitor for Allied is a partner in your husband's law firm and also because one of the members of the governing board of Allied is another partner in your husband's law firm. After referencing the original advice wherein you were advised to abstain from voting in any matter that would result in a financial gain other than compensation provided for by law, you ask whether such abstention would be required if you voted against funding for Allied or naming them (to administer) the grants. Secondly, after noting your understanding as to the need for abstention as to yes votes, you inquire as to how a negative vote could be construed as a vote for monetary benefit. Thirdly, after noting that Ms. Elizabeth M Verterano March 15, 1988 Page 2 the advice allowed your simultaneous service as county commissioner and member of the Allied board, you put forth your understanding that you would not be permitted to vote on any matter because of your husband's law partner being the solicitor for the board of Allied. Lastly, after noting that none of the board members receive any pay or remuneration for their service on Allied, you ask whether you would be precluded from voting on matters if your husband's law partner would resign as solicitor to Allied. Discussion: As a county commissioner, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject 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). As previously noted, a public official may not use his public office to obtain a gain or benefit for himself or a member of his immediate family or a business with which he is associated which is not provided for in law. Any personal gain or benefit which is not authorized in law would constitute a "financial gain other than compensation provided for by law." 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; Huff, Opinion 84 -015. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would include your husband. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Ms. Elizabeth M. Verterano March 15, 1988 Page 3 As you were previously advised, the State Ethics Commission under Section 3(d) is also empowered to address other areas of possible conflict. 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, supra. In applying the above provisions of the Ethics Act in Advice of Counsel, 88 -502, it must be noted that your original questions were broad in nature and consequently an advice was issued which likewise only addressed in general terms your conduct under the Ethics Act. The specific questions which you have addressed in your February 16, 1988 letter seeking additional advice will now be addressed seriatim. As to your question regarding the necessity of abstention if you were to vote against funding for Allied or naming them to administer the CDBG Funds, you would not be precluded from voting against Allied or voting against naming them to administer the CDBG Funds because your negative vote in that instance would not result in any financial gain to you or to your husband. As to your second question regarding how a negative vote could be construed as a vote for monetary benefit, it must be noted that negative votes, just like affirmative ones, are a use of public office (voting) which under certain circumstances can result in financial gain. For example, suppose that another entity other than Allied was interested in administering the CDBG Funds. If you voted against that entity (negative vote), the net effect of your action would be to eliminate a competitor of Allied so as to to ensure the continued administration of the CDBG Funds by Allied. Thus, a negative vote against a competitor would transgress the provisions of Section 3(a) of the Ethics Act just like an affirmative vote in favor of oneself, one's spouse or a business with which one is associated. See Pepper, Opinion 87 -008. Turning to your third inquiry regarding your acceptance of a seat on the board of Allied and your ability to vote on matters when your husband's law partner is solicitor for the board, once again Section 3(a) of the Ethics Act would not impose a total prohibition upon your Ms. Elizabeth M. Verterano March 15, 1988 Page 4 voting or participation but only in all of those instances where there is the potential for a personal or private financial gain, be it direct or indirect, for yourself or your husband's firm. Thus, you could vote on matters concerning Allied as long as there was no potential for direct or indirect financial gain on your part. As another example, suppose the situation arose as to the retention of the solicitor or as to the matter of the solicitor's compenation. In these latter two hypothetical situations, you should not vote on such matters pertaining to the solicitor in light of the fact that he is a partner of your husband. In such situations under Section 3(d) of the Ethics Act, you must abstain and note your abstention of public record and the reason for your abstention. As a further example, suppose that another attorney's name was submitted to become the new solicitor to Allied. In that case it would be inappropriate for you to vote against that individual because your negative vote in that situation would possibly insure the continuation of your husband's law partner as solicitor for Allied. Turning to the last inquiry in your letter, if the solicitor did resign and your husband's other law partner would remain on the board, such action would remove the conflict because then there would be no potential for financial gain on your part relative to your husband. Lastly. the propriety of your proposed conduct has only been addressed under the Ethics Act. Specifically, not addressed in this advice is the applicablity of the County Code or any other code of conduct other than the Ethics Act. Conclusion: As a county commissioner for Lawrence County you are a "public official" subject to the provisions of the Ethics Act. As outlined above, you may not vote on any matters that would result in personal financial gain, be it direct or indirect, to yourself or to your spouse. In situations involving personal financial gain for you or your spouse, you may neither vote nor cast negative votes and must abstain and note your abstention of public record together with the reasons for your abstention. The resignation of your husband's partner as solicitor would remove the conflict in that there would then be no potential for financial gain. Lastly, the propriety of your conduct has only been addressed under the Ethics Act. 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. Ms. Elizabeth M. Verterano March 15, 1988 Page 5 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. Sincerely, Vincent J. Dopko General Counsel