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HomeMy WebLinkAbout90-562 FonzoneDear Mr. Fonzone: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 18, 1990 90 -562 Mr. Charles J. Fonzone 123 North Fifth Street Allentown, PA 18102 Re: Conflict, Public Official /Employee, Councilmember, Town Hall, Historical Society, Councilmember as President of Historical Society, Use of Town Hall by Historical Society. This responds to your letter of April 25, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a councilmember who is the president of the historical society from participating or voting regarding the renovation or construction of the' town hall which is used by the historical society. Facts: As the solicitor of the Borough of Coopersburg located in Lehigh County, Pennsylvania and on behalf of the Borough and the individual councilmember, you request an advisory opinion regarding a certain factual situation. Borough council is currently in the process of deciding whether to renovate its Town Hall or to construct a new one. One councilmember is the President of the Historical Society which is an non - profit organization that is not directly related to the Borough. However, the Historical Society does use the Town Hall for various meetings and they lease office space from the Borough in the Town Hall at a modest rental. After noting that any improvement to the Town Hall would benefit the Historical Society which continues to utilize the Town Hall, you inquire as to whether a conflict would exist as to the councilmember who is the head of the committee considering the renovations or constructions of the new Town Hall. Concern is expressed that the councilmember who would be involved in the deliberations and decisions of council regarding Town Hall may have a conflict because he is president of the Historical Society. You conclude by requesting an advisory as to the potential conflict of interest. Mr. Charles J. Fonzone Page 2 Discussion: As councilmember for Coopersburg Borough, the individual is a public official as that term is defined under the Ethics Law, and hence he is 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 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 Mr. Charles J. Fonzone Page 4 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 is clear that the Historical Society is a business with which the councilmember is associated. Although the Historical Society is a non - profit organization, its non - for - profit status does not take it out of the definition "business with which he is associated ". Confidential Opinion, 89 -007. In addition, since the councilmember is president of the Historical Society, he is an officer thereof and consequently that is a business with which he is associated. Section 3(a) of the Ethics Law quoted above provides in part that a public official may not use the authority of office to obtain a private pecuniary benefit for himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. Since in this case the councilmember is "associated" with the non - profit Historical Society, he could not use the authority of office through voting or participating to obtain a private pecuniary benefit for that business. Thus, the councilmember would not be precluded from voting on the issue of the renovating of the existing Town Hall or the construction of a new one. In this regard, it is assumed that the matter of the lease of space to the Historical Society is separate and apart from the renovation /construction issue. However, the councilmember could not vote or participate on issues relating to the Historical Society such as the continuation of the lease, the term, the rent, etc. In addition, the disclosure requirements of Section 3(j) of the Ethics Law outlined above must be followed when applicable. 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 councilmember for Coopersburg Borough, the individual is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, the councilmember could vote or participate in matters regarding the renovation or construction of a new Town Hall but could not vote Mr. Charles J. Fonzone Page 3 director, officer, owner, employee or has a financial interest. 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. 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 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 Mr. Charles J. Fonzone Page 5 on matters having a private pecuniary benefit to the Historical Society, of which he is president. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 J. Dopko, Chief Counsel