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HomeMy WebLinkAbout92-514Mr. William T. Shulick, Esquire 80 South Stewart Street Blairsville, PA 15717 Dear Mr. Shulick: STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 22, 1992 92 -514 Re: Conflict, Public Official /Employee, Township Auditor, Private Employment or Business, Librarian for Library as Separate Non - Profit Association. This responds to your letter of December 9, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether Mrs. Louise Krajec, as a newly elected Auditor for Burrell Township, is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with the Burrell Township Library in a private capacity in addition to public service, where the Library is a separate non - profit association but receives some financial support from the Township and from the Burrell Township Community Development Corporation, an entity audited by the Township Auditors, which makes an earmarked donation to the Library used to pay Mrs. Krajec's wages as Librarian. Facts: As the Solicitor for Burrell Township, a second class Township situate in Indiana County, Pennsylvania, you seek the advice of the State Ethics Commission on behalf of Mrs. Louise Krajec, a township resident newly elected to office as a Township Auditor. For years, Mrs. Krajec has been employed as the Librarian for the Burrell Township Library. The Burrell Township Library is a separate non - profit association governed by a seven - member board of directors. However, the Library is financially supported by state aid and local sources such as donations, gifts and fund drives. The Library also receives financial support from Burrell Township and from the Burrell Township Community Development Corporation, a non - profit development corporation operating within the Township. You note Mr. William T. Shulick January 22, 1992 Page 2 that the donation from the Burrell Township Community Development Corporation is used to pay Mrs. Krajec's wages as Librarian. Pursuant to a cooperation agreement with Burrell Township, the Burrell Township Community Development Corporation manages low income housing units for the Township, with the rental income being directed back into the community in the way of civil projects such as the payment of the Burrell Township Librarian's wages. Over the years, the Burrell Township Auditors have audited the books of the Burrell ,Township Community Development Corporation. You note that although Mrs. Krajec does not presently hold any elective or appointive office in the Township and is merely an employee of the Library, she is concerned that her recent election as a Township Auditor may present problems. Mrs. Krajec is scheduled to assume her duties as Township Auditor on January 7, 1992. Based upon all of the above, you request an advisory as to whether Mrs. Krajec's duties as Auditor would conflict with her remaining as Librarian for the Burrell Township Library inasmuch as Township funds are used to help support the Library. Discussion: Upon assuming office as a Township Auditor for Burrell Township, Mrs. Louise Krajec will become a "public official" as that term is defined in the Ethics Law and hence she will thereupon be subject to the provisions of the Ethics Law. 65 P.S. 5402;' 51 Pa. Code 51.1. 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 Mr. William T. Shulick January 22, 1992 Page 3 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 of 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. 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 anything 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 been 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 Mr. William T. Shulick January 22, 1992 Page 4 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 tho 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 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. It is initially noted that under Section 3(a) of the Ethics Law, this Commission would only have jsrisdiction over Mrs. Krajec in her capacity as a public official. Thus, this Commission would not have the jurisdictional authority to issue an Advice restricting Mrs. Krajec in her private employment as a Librarian for the Library which is a separate non- profit association. Mr. William T. Shulick January 22, 1992 Page 5 We note that Section 3(a) of the Ethics Law does not prohibit public officials/employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office /employment for such a prohibited private pecuniary benefit. A public official/ employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, . a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. As a separate non - profit association governed by its own seven member board of directors, and receiving both public and private financial support for its operations, the Burrell Township Library would be deemed a business with which Mrs. Krajec is associated as defined in the Ethics Law. Thus, in her capacity as Township Auditor, Mrs. Krajec would have a conflict of interest as to matters pertaining to the Library itself. Mrs. Krajec may not use the authority of office or confidential information received by holding her public position for a private pecuniary benefit for herself, or for the Library which employs her. In the event that the Library, as Mrs. Krajec's - private employer, has a matter pending before the Township Auditors, as Mrs. Krajec's governmental body or it she as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that Mrs. Krajec be removed from that process. In each instance of a conflict of interest, Section 3(j) of the Ethics Law noted above would req»ire that Mrs. Krajec abstain from any participation of any nature whatsoever and also publicly disclose her abstention and the reasons for same, both orally and in a written memorandum filed with the secretary recording the minutes. Mr. William T. Shulick January 22, 1992 Page 6 As for potential conflicts of .interest relating to supporters and patrons of the library, Mrs. Krajec would not have a conflict of interest as to those contributors whose donations are not earmarked in such a way so as to constitute a pecuniary benefit for Mrs. Krajec. Based upon the facts which have been submitted, it would appear that the Township itself would fit into this category, in that its financial donations do not appear to be earmarked in any way to Mts._Krajec. However, Mrs. Krajec would have a conflict of interest in any matter coming before her as a Township Auditor which pertains to a contributor such as the Burrell Township Community Development Corporation, whose financial donations to the Library are specifically earmarked to pay Mrs. Krajec's wages as Librarian. Mrs. Krajec's relationship with such -a patron may be likened to the relationship of a business's employee to its clients. This Commission has previously held that a public official /employee would have a conflict of interest in matters which come before him in his public capacity, pertaining to clients of a business by which he is employed in a private capacity. See, Miller Opinion 89 -024. As noted above, as to each such conflict of interest Mrs. Krajec must remove herself from that particular matter and meet the disclosure requirements of Section 3(j). 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 Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein' is the applicability of the Second Class Township Code. Conclusion: Upon assuming office as a Township Auditor for Burrell Township, Mrs. Louise Krajec will become a "public official" subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude Mrs. Krajec as a public official from outside employment /business activity as Librarian for the Burrell Township Library, subject to the restrictions and qualifications as noted above. In the event that the Burrell Township Library has matters pending before the Burrell Township Auditors, then Mrs. Krajec would have a conflict of interest as to such matters. Mrs. Krajec would have a conflict of interest as to matters before the Auditors which pertain to the Burrell Township Community'Development Corporation and /or any other contributors to the Library whose donations are earmarked so as to constitute a pecuniary benefit for Mrs. Krajec. In each instance of a conflict of interest, Mrs. Krajec would be required to abstain from any participation of any nature Mr. William T. Shulick January 22, 1992 Page 7 whatsoever and would additionally be required to observe the disclosure requirements of Section 3(j) of the Ethics Law as set forth 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. 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 S2.12. ery truly yours, �J Vincent J. Dopko, Chief Counsel