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HomeMy WebLinkAbout19-536 OverlyPHONE: 717-783-1610 TOLL FREE1-800-932-0936 To the Requester: Ms. Brenda Overly Dear Ms. Overly: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 15, 2019 FACSIMILE: 717-787-0806 WEBSITE: ymmethimpamy 19-536 This res onds to your letter dated June 11, 2019 (postmarked July 17, 2019, received July T9, 2019), b� which you requested an advisory from the Pennsylvania State Ethics Commission (" ommission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 P=& § 1101 et sew., would impose prohibitions or restrictions upon an individual with regard to being elected and serving as a Member of Council for Hunker Borough, where the individual serves as President of the Hunker Borough Civic Association, Facts: You request an advisory from the Commission based upon submitted facts hat may be fairly summarized as follows. In the 2019 primary election, you were nominated for a position on Hunker Borough ("Borough") Council by write-in votes. You are currently serving as President of the Hunker Borough Civic Association ('Civic Association"), which is a group of volunteers who try to foster fellowship in the community. You state that the Civic Association has come and gone over the years and that the Civic Association started operating again in September 2018. The Civic Association raises funds and holds various community events. Although, the Borough gave the Civic Association $500.00 when it started operating again, the Civic Association will no longer receive any funds from the Borough and must now be self- sufficient. You state that you have been questioned as to whether you would be permitted to serve as a Borough Council Member while you are serving as President of the Civic Association. Based upon the above submitted facts, you ask whether the Ethics Act Would impose prohibitions or restrictions upon you with regard to being elected and serving as a Borough Council Member. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1 107(l 1) of the Etfiics--A , 65 Pa.C.S §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based �Ov�erl., 19-536 uclu ugust 15, 2019 Page 2 upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10}, (11). An advisory on affords a defense to the extent the requester has truthfully discosed all of the material izacts. Sections 11 03(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) Voting conflict. --Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in, the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three -member governing body opolitical subdivision, where one member has abstained a dfrorn voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public emplo ee of the authority of his office or employment or any confidential information received through his holding public office or employment for the priv e pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business OUverJI, 19-536 -6-Ust15, 2019 Page 3 with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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 has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required abstain a rt participation, which would include voting unless one of the 1 3 of the Ethics Act would be applicable. uir to from P icip 10 statutory Section a u ry e tn t to io s of requirements ts Section i 11 exceptions p disclosure eq remen of e n 11030) of the Ethics Act would have Add tiona, the to be satisfied i n the event of a voting conflict In afollows.. i the above provisions of the Ethics Act to the instant matter, you are g e advised as The Ethics Act would not prohibit you from being elected and serving as a Borough Council Member while you are serving as President of the Civic Association. If you would be elected as a Borough Council Member, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. The Civic Association is a business with which you are associated in your capacity as an officer (President). Upon taking office as a Borough Council Member, you generally would have a conflict of interest in matter(s) before Borough Council that would financially impact you or the Civic Association, In each instance of a conflict of interest, you would be required to abstain from participation, which would include votingunless one of the statutoryexceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. iOver 19-536 L ng—ulls t, 15, 2019 Page 4 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 he Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Erough Code. Conclusion: Based u on the submitted facts that: (1) in the 2019 primary election, you were nominatedfor a position on Hunker Borough ("Borough") Council by write-in votesi (2) you are currently serving as President of the Hunker Borough Civic Association ('Civic Association"), which is a group of volunteers who try to foster fellowship in the community; (3) the Civic Association has come and gone over the years, and the Civic Association started operating again in September 2018; (4) the Civic Association raises funds and holds various community events; (5) although the Borough gave the Civic Association $500.00 when it started operating again, the Civic Association will no longer receive any funds from the Borough and must now be self- sufficient; and (6) you have been questioned as to whether you would be permitted to serve as a Borough Council Member while you are serving as President of the Civic Association, you are advised as follows. The Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et secl., would not prohibit you from being elected and serving as a Borough Counc—il Member while you are serving as President of the Civic Association. If you would be elected as a Borough Council Member, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. The Civic Association is a business with which you are associated in your capacity as an officer (President). Upon taking office as a Borough Council Member, you generally would have a conflict of interest in matters) before Borough Council that would financially impact you or the Civic Association. In each instance of a conflict of interest, you would be required to abstain from participation, which would include votingunless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 an reason to challenge same, you may appeal the Advice to the furl Commission. A personal appears before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actuallLt received at the Commission within thirty ('30) days of the date of this Advice 'pursuant to 51 Pa. Code § *f3.2jp). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to Over 19-536 AQU `RUI S t' 15, 2019 Page 5 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, �V- Robin M.Hittie Chief Counsel