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HomeMy WebLinkAbout90-568 TroutmanSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 13, 1990 Mr. E.C. Troutman 90 -568 Myerstown Borough Council 101 East Washington Avenue Myerstown, PA 17067 -1142 Re: Conflict, Public Official /Employee, Water Authority Chairman, Employment by Authority Engineering Firm. Dear Mr. Troutman: This responds to your letter of May 11, 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 water authority chairman, who is employed by a consulting engineering firm which is retained by the authority, to vote to break a tie regarding expenditures or policy matters of the authority. Facts: Myerstown Borough as the appointing authority for the Myerstown Water Authority (Authority), requests an advisory opinion as to the conduct of Authority Chairman Roger T. Karsnitz who is employed by a consulting engineering firm which is retained by the Authority to do its routine and extended project engineering work. Although Mr. Karsnitz rarely has an opportunity to vote on actions of the Authority, occasions do arise where there is a tie vote and clarification is requested as to whether Mr. Karsnitz may vote on expenditures or' policy matters of the Authority. You note that Mr. Karsnitz is currently serving his eighth term with the Authority and is considered a valued public official. However, you conclude by requesting an advisory opinion as to whether the conduct of Mr. Karsnitz is within the bounds of the Public Official and Employee Ethics Law. Discussion: As Chairman for Myerstown Water Authority, /Roger Karsnitz is a public official as that term is defined 'under the Ethics Law, and hence he is subject to the provisions of that law. Mr. E.C. Troutman Page 2 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 director, officer, owner, employee or has a financial interest. 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 L w as follows: 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 Itr. E.C. Troutman Page 3 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 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. Mr. E.C. Troutman Page 4 In the event that the required abstention results "in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. In applying the provisions of Section 3(a) of the Ethics Law to the instant matter, the Ethics Law does not preclude a public official /employee from engaging in outside employment activWes. Pancoe, Opinion 89 -011. However, the public officiaY / employee may not use the authority of office to advance the private pecuniary benefit of the business with which he is associated. In this case, since Mr. Karsnitz is an employee of the engineering firm, it is clear that the engineering firm is a business with which he is associated as that term is defined under the Ethics Law. Consequently, Section 3(a) of the Ethics Law would preclude Mr. Karsnitz from using the authority of office to obtain a private pecuniary benefit for the business with which he is associated. Mr. Karsnitz could therefore not vote or participate regarding matters as to the engineering firm and must comply with the disclosure requirements of Section 3(j) of the Ethics Act noted above. In addition, Mr. Karsnitz could not use the authority of offices, personnel, or equipment to do the private work of the engineering firm out of the public offices of the Authority. Pancoe, supra. However, in .the event that the abstention of Mr. Karsnitz would result in a situation where the members of the Authority would be deadlocked, then in that event Mr. Karsnitz would be permitted to vote provided that he would make the necessary disclosures as required by Section 3(j) of the Ethics Law. 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 Chairman for Myerstown Water Authority, Roger Karsnitz is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, Roger Karsnitz could not participate or vote concerning matters of an engineering firm by which be is employed and must comply with the disclosure requirements of Section 3(j) of the Ethics Law. In the event that his abstention would result in a deadlock by the remaining authority members, then in that instance Roger Karsnitz could vote under Section 3(j) of the Ethics Law provided he complied with the disclosure requirements of Section 3(j) noted Mr. E.C. Troutman Page 5 above. 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. / 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 52.12. Sincerely, Vincent -. Dopko, Chief Counsel /