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HomeMy WebLinkAbout88-630 DunworthJames Dunworth, Esquire The Wallace Building 1122 Kimberton Road Phoenixville, PA 19460 Dear Mr. Dunworth: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1988 88 -630 Re: Conflict of Interest, Public Official, Borough Councilmembers, Gifts, Fireboxes This responds to your letter of August 22, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether State Ethics Act presents any restrictions or prohibition upon members of borough council from receiving gifts of fireboxes from the borough. Facts: In your letter you state that you represent Bonnie K. August and Theodore X. Beluch who have been elected and are currently serving as councilpersons in the Borough of Phoenixville, Chester County, Pennsylvania. After stating that the Borough of Phoenixville caused certain outdated and nonoperable fireboxes to be removed from various locations in the Borough, you advise that the fireboxes have no value except as memorabilia from a past era in the Borough. After noting that the Borough through current Borough Manager has made a gift of the fireboxes to Ms. August and Mr. Beluch, you request an advisory opinion as to whether these Borough coucilpersons may accept a gift of the fireboxes under the Ethics Act. Discussion: As councilpersons for Phoenixville Borough, Ms. August and Mr. Beluch are public officials 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 X1.1; Rider, Order 490 -R. As such, they are subject to the provisions of the Ethics Act. James Dunworth, Esquire September 26, 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. 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). Under the above provision of law, the Ethics Commission however, is also empowered to address other areas of possib'.e conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinaer, 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 or a conflict with the James Dunworth, Esquire September 26, 1988 Page 3 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, Opinion 85 -010. In the instant matter, the question is whether these two councilpersons may accept gifts from the Borough of nonoperable fireboxes which you characterize as memorabilia of no value. It must be assumed that the fireboxes, although they are outdated and nonoperable, must have some value, even though relatively little, since you have stated that they may be considered as memorabilia. Therefore, if the councilpersons were to accept this Borough property which has some value, it would be clear under Section 3(a) of the Ethics Act that the councilpersons as public officials would be using office through their position to obtain a financial gain (the value of the fireboxes) for themselves which is not part of the compensation provided for by law. As to whether such gain would be part of their compensation provided for by law, it is noted that there is no provision in the Borough Code which would authorize their receipt of such memorabilia nor is there any provision which authorizes them to receive any additional compensation other than that which is provided in law. See the Borough Code of 1966, Act No. 581, Section 1001, as amended, 53 P.S. 846001. Thus, if they were to accept this gift, they would be receiving something of value from the Borough which is not part of their compensation provided for by law contrary to Section 3(a) of the Ethics Act. See Shucrarts, Order 623, where the Ethics Commission determined that a borough councilman violated Section 3(a) of the Ethics Act -when he performed plowing services for the borough and received compensation for such services over and above the maximum to which he was entitled as a borough councilman. Additionally, under Section 3(d) of the Ethics Act quoted above, there would be an appearance of a conflict if Borough councilpersons were to receive these memorabilia /fireboxes which were given as gifts because they are public officials serving on Borough Council. It is noted that you have indicated that the gifts have come from the Borough via the Borough manager. Were these two councilpersons to accept this gift through Borough manager, an appearance of conflict would also arise when they subsequently would have to review his work or consider renewing James Dunworth, Esquire September 26, 1988 Page 4 his contract or raising his salary. Thus, under Section 3(d) of the Ethics Act, these two councilpersons should not accept the gifts of the fireboxes because an appearance of a conflict of interest would arise. Under Sections 3(a) and 3(d) of the Ethics Act, the two councilpersons should not accept the gifts of the fireboxes because such action would create a conflict and the appearance of a conflict under the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Bonnie K. August and Theordore X. Beluch as councilpersons from the Borough of Phoenixville are public officials subject to the provisions of the Ethics Act. Under Sections 3(a) and 3(d) of the Ethics Act the two councilpersons may not accept the gifts of the fireboxes from the Borough. 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. such. This 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 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. ^ S 1 incerely, v Ocami Vincent J. Dopko, General Counsel