HomeMy WebLinkAbout90-548 GoodMr. John E. Good
Law Offices
John E. Good Associates
331 West Miner Street
West Chester, PA 19382
Dear Mr. Good:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 17, 1990
90 -548
Re: Conflict, Public Official /Employee, Township Commissioner,
Volunteer Fire Company.
This responds to your letters of March 22 and April 2, 1990,
in which you requested advice from the State Ethics Commission.
Issue: You ask whether the Public Official and Employee Ethics
Law presents any prohibition or restrictions upon township
commissioners from participating or voting on matters relating to
fire contracts services when they are members of the volunteer
fire company.
Facts: As solicitor for Caln Township and at the request of two
of the commissioners, you seek advice as to the propriety of the
two township commissioners voting on matters regarding fire
contract services when they are members of the volunteer fire
company. Caln Township is a first class township in Chester
County, Pennsylvania, with a five member board. The township is
serviced by a volunteer fire company known as the Thorndale
Volunteer Fire Company. The members of the fire company are
volunteer, that is, are not compensated and do not receive any
financial gain. One or more of the Commissioners is also a
member of the fire company and there has been some recent
discussion as to the issue of a conflict of interest if a
Commissioner who is also a member of the fire company would vote
on a matter of expenditures for volunteer fire company purposes.
After referencing "The Pennsylvanian ", a municipal publication,
wherein an opinion is expressed that a conflict would exist which
would warrant the member from abstaining on such questions, you
express your view that since the Commissioner who is a member of
the fire company has no financial interest therein, no conflict
could exist. After noting that the members do not have any
Mr. John E. Good
Page 2
financial gain either by way
membership equity, you request
matter.
Discussion: As
Commissioners are
under the Ethics
provisions of that
The
follows:
of salary, compensation, or
an advisory opinion on this
Commissioners for Caln Township, the two
a public officials as that term is defined
Law, and hence they are subject to the
law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
following terms are defined in the Ethics
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.
Law as
Mr. John E. Good
Page 3
"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.
"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.
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.
In applying the provisions of Section 3(a) of the Ethics Law
quoted above together with the definitions therein, Section 3(a)
restricts the use of authority of office by a public
official /employee to obtain a private pecuniary benefit for
himself, member of his immediate family or business with which he
is associated. Assuming that the Commissioners are not either
directors, officers, owners, employees or have a financial
interest in the volunteer fire company, then said company would
not be a business with which they are associated. Assuming the
foregoing to be true, the Commissioners would not be restricted
from participating or voting on matters relating to the volunteer
fire company.
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. Specifically
not addressed herein is the applicability of the respective
municipal code.
Conclusion: As Commissioner for a first class township, the
two individuals are public officials subject to the provisions of
the Ethics Law. Section 3(a) of the Ethics Law would not
restrict or prohibit first class township commissioners from
Mr. John E. Good
Page 4
voting on matters of a volunteer fire company of which they are
members provided that such fire company_ is not a business with
which they are associated as that term is defined under the
Ethics Law. Lastly, the propriety of the proposed conduct has
only been addressed under the Ethics Law.
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 2.12.
S cerely,
�"^C9rJh
Vincent . Dopko,
Chief Counsel