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HomeMy WebLinkAbout90-549-S JonesMr. William T. Jones, Esquire Law Offices of Levy & Preate Fourth Floor Scranton Electric Building Scranton, PA 18503 Re: Conflict, Public Official /Employee, Borough Councilmember, Vote, Business With Which He Is Associated. Dear Mr. Jones: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 21, 1990 90 -549 -S This responds to your letters of May 18, 1990, in which you requested additional advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any additional or further restrictions upon a borough councilmember from voting on a landfill when a councilmember is employed by a corporation of which one of the owners, owns and operates the landfill in his individual capacity. Facts: After referencing Jones, Advice 90 -549, issued on May 17, 1990 as to the conduct of Mr. Armstrong who is an employee of Amity Lumber, you seek additional advice regarding one of the inquiries you raised concerning the propriety of Mr. Armstrong voting on matters that either directly or indirectly impact upon his employer or companies that would be related to or affiliated with his employer. Armstrong works for Amity Lumber which is a trade name of the Pennsylvania Corporation "Amity and Company, Inc." of which Amity and his family members are the owners. Amity also owns and operates in his individual capacity a landfill within Taylor Borough. After noting that the advice explicitly prohibits Armstrong from engaging in a conflict with the Amity Lumber which is a business with which he is associated, you inquire as to the restrictions upon Armstrong regarding the landfill which is owned by Amity. You state that neither Armstrong or any member of his family is a director, officer, owner, employee or has a financial interest in the landfill. You then express your understanding that Armstrong would not be deemed to be associated with the landfill and that Armstrong as a Mr. William T. Jones Page 2 member of Taylor Borough Council intends to vote on an amendment to the subdivision ordinance of the Borough which involves a request by Amity to expand the zone in which the landfill operates. After referencing an advice issued to a Mr. Gable, you assert that there would be no prohibition as to Armstrong voting on the issue since he would not be associated with the landfill and conclude by requesting additional advice as to this particular issue. Discussion: As per Jones, Advice 90 -549 which is incorporated herein by reference, Mr. Armstrong is a public official as defined under the Ethics Law and as such 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 Mr. William T. Jones Page 3 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. 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(a) of the Ethics Law quoted above specifically provides that a public official may not use confidential information or the authority of office to obtain a private pecuniary benefit from himself, member of his immediate family, or business with which he or member of his immediate family is associated. In your request for additional advice, you have stated neither Armstrong or member of his immediate family is a director, officer, owner, employee or has a financial interests in the landfill in question. Accordingly, based upon the above factual representations, the landfill would not be a business with which Armstrong is associated and consequently he would not be restricted from voting or participating on matters involving the landfill. 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 councilmen for Taylor Borough, Mr. Armstrong is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict Armstrong from voting on a matter of a landfill when the landfill is not a business with which he is 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. Mr. William T. Jones Page 4 Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission�'y, 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 52.12. cerely, Vincent J. Dopko, Chief Counsel