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HomeMy WebLinkAbout90-542 PeraMs. Brenda L. Pera 290 Main Street Hummelstown, PA 17036 Dear Ms. Pera: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 11, 1990 90 -542 Re: Conflict, Public Official, Immediate Family, Borough Council, Spouse. This responds to your letter of March 13, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon a borough councilmember from voting on an ordinance which might benefit the spouse of the councilmember who is a local contractor. Facts: As a member of Hummelstown Borough Council which is in the process of developing an existing sidewalk /curb repair /replacement ordinance, you note that your husband Tim Gesford is involved in a part -time endeavor called Gesford's Masonry. You anticipate that he will contract to do sidewalks in the borough as a result of this ordinance. The borough will develop a list for residents who request the names of local contractors. The list will include all the names of contractors interested to do the work but will not recommend one contractor over another. You inquire as to whether you husband's business is a conflict of interest and whether you may continue to develop this ordinance or should you remove yourself from the discussion. Further you ask whether you should abstain from voting when council is ready to approve this ordinance in light of the fact that you could possibly benefit financially from the ordinance. Discussion: As a Councilmember for Hummelstown Borough, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Ms. Brenda L. Pera Page 2 (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private 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. "Conflict" or "conflict of interest" 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 or his immediate family or a business 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. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a ,public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Ms. Brenda L. Pera Page 3 Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since your husband is in the familial relationship delineated above, Section 3(a) of the Ethics Law would otherwise prohibit you from participating or voting on matter which would affect your husband individually or the business with which he is associated, Gesford's Masonry.. However, it is noted that your husband would be affected to the same degree as 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 with which he or a member of his immediate family is associated. In particular, he would be a part of a class of local contractors who would be put on a list to do this work and the list would not favor one contractor over another. Although you should not participate or take action or recommend that your husband be put on the list, you would not be precluded from voting as to the ordinance because the ordinance would be affecting all contractors as a class to the same degree. Therefore since your husband would be contractor who would be in a class /sub- class, Section 3(a) of the Ethics Law would not restrict such activity provided your husband is in a class /sub -class consisting of more than one person and provided your husband is affected to the exact same degree as all other members of the class /sub - class. Davis, Opinion 89 -012. In summary, although you could not participate in the matter of making up the list of contractors or voting on that list or recommending your husband as one of the names on the list, you would not be precluded from voting on the ordinance itself based upon the above facts and circumstances. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Councilmember of Hummelstown Borough, you are a public official subject to the provisions of the Ethics Law. As to a borough sidewalk /curb repair /replacement ordinance, Section 3(a) of the Ethics Law would prohibit you from participating as to making up the list for contractors or recommending that your husband be put on the list of available contractors since he is a member of your immediate family as that term is defined under the Ethics Law; however, you would not be precluded from participating or voting for the ordinance under the facts and circumstances outlined above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Ms. Brenda L. Pera Page 4 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Vincent J. Dopko, Chief Counsel