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HomeMy WebLinkAbout88-606 PapeMr. John A. Pape 5415 California Avenue Bethel Park, PA 15102 Dear Mr. Pape: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 12, 1988 88 -606 Re: Conflict of Interest, Councilmember, Voting on Matters Concerning Customers of Business with which He is Associated This responds to your letter of June 7, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition or restrictions on a councilmember from voting on matters concerning customers of a business with which the councilmember is associated. Facts: You state that you are a Councilman in the Municipality of Bethel Park and that you are a partner in the firm of John Pape Floor Coverings. You state that you have been inactive in the business operations for several years and recently have suffered a disabling injury and have not worked since that time. You then advise that all the sales and installation operations of the captioned firm are conducted by other principals and employees of the firm and that you do not have any personal knowledge of what jobs are handled by the firm or the identity of the firms' customers. You express your belief that you do not have a conflict of interest in this situation but seek advice as to whether you may vote on issues pertaining to the customers of John Pape Floor Coverings as a councilman for Bethel Park. Discussion: As a councilmember for Bethel Park, you 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. Mr. John A. Pape July 12, 1988 Page 2 The Act does, however, provide 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 his position or any confidential information obtained therein in order to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated. The Act defines business with which one is associated as follows: Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. 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 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 Yacobet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use public office to secure any financial gain for himself or for a business which he is associated. See Domalakes, Opinion 85 -010. In the instant matter, since you are a partner in the John Pape Floor Coverings, it is clear that that is a business with which you are associated as that term is defined under the State Ethics Act. Accordingly, under Section 3(a) of the Ethics Act, you may not participate or vote on -any matter concerning John Pape Floor Coverings that would come before the Municipality of Bethel Park. Further, you must note your abstention publicly and the reason for your abstention. As to the matter of your participation or voting on customers of John Pape Floor Coverings that would come before the Municipality of Bethel Park, Section Mr. John A. Pape July 12, 1988 Page 3 3(a) of the Ethics Act would not preclude you from voting on matters brought by these customers provided these customers arc. not a member of your immediate family or these customers are not businesses with which you are associated. Since your interest would be considered remote as to the customers of the firm, Section 3(a) would not preclude you from voting or participating. See Markham, Opinion 85 -013. 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 the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. 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. Lastly, the propriety of the proposed conduct has only been 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 councilman for the Municipality of Bethel Park, you are a public official subject to the provisions of the State Ethics Act. Under Section 3(a) of the Ethics Act, you may not participate or vote on matters concerning the John Pale Floor Coverings which is a business with which you are associated under the Ethics Act. You must note your abstention and the reason for that abstention regarding any matters concerning John Pape Floor Mr. John A. Pape July 12, 1988 Page 4 Coverings. However, under Section 3(a) of the Ethics Act, subject to the limitations as outlined above, you may vote or participate on matters before the Municipality of Bethel Park concerning the customers of the firm of John A. Pape floor coverings. Lastly, the propriety of the proposed 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 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. Sincerely, 0 Vincent J. Dopko, General Counsel