HomeMy WebLinkAbout90-552 StumpSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 24, 1990
Ms. Barbara Orsburn Stump 90 -552
Attorney at Law
43 North Duke Street
York, PA 17401
Re: Conflict, Public Official /Employee, Borough Councilmember,
Fire Company, Councilmembers' As Members or Officers of Fire
Company.
Dear Ms. Stump:
This responds to your letter of April 11, 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 borough
councilmembers regarding participating or voting on matters of a
fire company and ambulance club when they are officers or
members of that company.
Facts: As the solicitor of Yoe Borough in York County and at the
authorization of Ronald Crull, president of council and Richard
Searle, member of council, you note that councilmember Searle is
presently president of the fire company and council president
Crull is an inactive member. As in a typical community, a large
portion of the population contributes annually to the loca,1 fire
company and ambulance club and, as such, are members of those
organizations. Currently three of the seven councilmembers
belong to the fire company and in the past there have been as
many of five of the seven council members who are also members of
the fire company although most of the five were inactive. The
borough annually reviews the financial statements of the fire
company and contracts with it for services. Although the fire
company accounts for a small portion of the borough's annual
budget, the borough has from time to time held title to the fire
equipment when state and federal funds were available to local
governments for such purchases. After the equipment was paid
for, titles were subsequently transferred to the fire company.
Prior to July, 1989 the fire company was the borough's landlord
for its public meeting room and offices. In addition, the fire
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company has on occasion had zoning applications. There is also a
dialogue between the fire company relative to the sufficiency
of its need for financial statements and appropriations by the
borough to the fire company. The fire department has also been
advisory to council on such matters as fire hydrant systems and
other public safety matters. At your direction, officers of the
fire company have abstained from issues involving the
organization while other members who are otherwise inactive have
participated in decisions concerning the fire company. You
conclude by requesting advice as to whether Councilmen Searle as
an officer of the fire company may participate in decisions
involving the company and also whether Crull as an inactive
member of the fire company may participate relative to matters
involving the fire company.
Discussion: As Councilmembers for Yoe Borough, Messrs. Searle
and Crull are public officials as that term is defined under the
Ethics Law, and hence they are subject to the provisions of that
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.
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
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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 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.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities.
(j) 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
"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.
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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 of a political subdivision,
where one member has abstained from 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.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain as well as file a written memorandum
to that effect with the person recording the minutes or
supervisor.
In applying the above provisions and definitions of the
Ethics Law to the instant matter, it appears upon the submitted
facts that Mr. Searle is associated with the fire company as that
term is defined under the Ethics Law in that he is an officer
therein whereas Mr. Crull would not appear to be so since he is
an inactive member but not a director, officer, owner, employee
or individual who has a financial interest in the fire company.
Accordingly, although Mr. Crull, based upon the above
assumptions, would not be precluded from participating or voting
on matters of the fire company, Councilmember Searle would be so
precluded because Section 3(a) of the Ethics Law restricts the
use of authority of office by a public official to obtain a
private pecuniary benefit for himself, a member of his immediate
family or business with which he is associated. Accordingly, Mr.
Searle could not under Section 3(a) of the Ethics Act participate
and he must abstain and as per the requirements of Section 3(j)
of the Ethics Law he must publicly note the reason for his
abstention as well as file a written memorandum to that. effect
with the secretary recording the minutes.
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
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not addressed herein is the applicability of the respective
municipal code.
Conclusion: As Councilmembers for Yoe Borough, Mr. Searle
and Mr. Crull are public officials subject to the provisions of
the Ethics Law. Under Section 3(a) of the Ethics Law, although
Mr. Crull as an inactive member of the fire company would not be
precluded from participating or voting on matters involving the
fire company, Mr. Searle as president and hence as officer of the
fire company would be precluded since that is a business with
which he is associated as that term is defined under the Ethics
Law. Mr. Searle must observe the requirements of Section 3(j) of
the Ethics Law noted above. 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.
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 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.
Sincerely,
Vincent Dopko ,
Chief Counsel