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HomeMy WebLinkAbout88-599 AmbrassMr. James G. Ambrass 184 Locust Street Pittsburgh, PA 15202 Dear Mr. Ambrass: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 6, 1988 88 -599 Re: Conflict of Interest, Councilmember, Appointment as Street Commissioner, Resignation from Council This responds to you letter of May 27, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether under the State Ethics Act a member of Borough Council would be required to resign from Council when he is interested in applying for the position of Street Commissioner and secondly whether he should recuse himself from Council discussions regarding that position. Facts: You state that you serve on the Council of the Borough of Emsworth which is seeking a replacement for the Street Commissioner position. After noting that you are interested in applying for the position, you ask whether you would have to resign your seat on Council in order to apply for the position or whether you could resign only if you were hired. Secondly, you inquire as to whether you would have to excuse yourself from the Council during discussions on the Street Commissioner position. Discussion: As a Councilmember for the Borough of Emsworth jou are a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code S1.1. As such, you are subject to the provisions of the Ethics Act. James G. Ambrass July 6, 1988 Page 2 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 or smployee may not use his public office or confidential '_nformation to obtain a financial gain other than compensation .s provided for by law for himself or a member of his immediate- family or a business with which he is associated. 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. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of hi^ :immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that James C.•Ambrass July 6, 1988 Page 3 the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not . exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Under the above facts and circumstances, Section 3(a) of the Ethics Act would not require you to resign your seat on Council prior to the time you would be hired, assuming that the Borough Council selects you as the new Street Commissioner. However, you could not under the Ethics Act participate in discussions concerning the Street Commissioner position if you are applyi:.ig for that position and you could not vote on the matter of your own appointment nor could you vote against any other competitors who would be interested in that position. See Pepper Opinion, 87 -008. Lastly, the propriety of the proposed conduct has only b_c: addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Councilmember for Emsworth Borough, you are a public official subject to the provisions of the State Ethics Act. Under Section 3(a) of the Ethics Act you would not be required to resign your seat on Borough Council prior to the time you became Street Commissioner provided you would be the successful applicant for that position. However, you could no's participate in discussions regarding the Street Commissioner position and could not vote on your appointment or the appointment of any other applicant who was competing for the position. Lastly, the propriety of the proposed conduct has only • be 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 James G . - Ambra s s July 6, 1988 Page 4 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. T'hb9_s letter is a public record and will be made available as 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 Ccnmission be scheduled and a former 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