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HomeMy WebLinkAbout92-526Mr. John F. Cambest Barry, Fasulo & Cambest, P.C. 32nd Floor, Gulf Tower Pittsburgh, PA 15219 -1913 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 6, 1992 92 -526 Re: Conflict, Public Official /Employee, Municipal Council Member, Use of Authority of Office, Vote, Appointment, Municipal Authority Member, Immediate Family, Child, Child Employed by Municipal Authority. Dear Mr. Cambest: This responds to your letters of December 17, 1991 and January 27, 1992, 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 members of a municipal council with regard to appointme is to an authority which employs their immediate family membe #s. Facts: As the Solicitor of the Municipality of Monroeville, Pennsylvania, you seek the advice of the State Ethics Commission on behalf of certain Members of the Monroeville Municipal Council ( "Council ") with regard to their prospective appointment of Members to the Monroeville Water Authority ( "Authority "). These Members' sons are currently employed by the Authority. It is your understanding that the sons are over the age of twenty -one, do not reside in the households of the Council Members, and may have been hired by the Authority prior to their fathers becoming Members of Council. In January of 1992, Council will be making appointments to the Authority Board. A question has arisen as to whether these particular Council Members, whose sons are:lemployees of the Authority, would have a conflict of interest in appointing a third party individual to the Authority Board. It has been suggested that if a Council Member appoints an independent third party individual to the Authority Board then he may have some Mr. John F. Cambest February 6, 1992 Page 2 influence over that individual which couldlbenefit the Council Member's son who is employed by the Authority. It is your understanding, based upon the resumes which have been submitted, that none of the individuals eligible to be appointed are themselves relatives or family members of the two Council Members in question. Noting that it is anticipated that these appointments may occur in the second week of January, you seek an expedited advisory from this Commission based upon all of the above facts. You have submitted a copy of Vicinski and Wozniak, Advice 84 -575, dated June 20, 1984, which you believe presented the same factual situation except for the type of immediate family member involved. Discussion: As Members of the Monroeville Municipal Council ( "Council "), each Council Member is a public official as that term is defined under the Ethics Law, and hence each 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, Mr. John F. Cambest February 6, 1992 Page 3 occupation or other group which includes the public official or public employee, a member of his immediate family or a bus=ness 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. "Immediate family." A parent, spouse, child, brother or sister. 7,. 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 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 Mr. John F. Cambest February 6, 1992 Page 4 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 gu7erning 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 and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to the question which you have presented, Section 3(a) of the Ethics Law prohibits a public official /public employee from using the authority of public office /employment or any confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. The term "immediate family" as defined in the Ethics Law specifically includes a child, and makes no exceptions based upon age or place of residence. Thus, it is clear that the :tons of these Council Members would be their immediate family members. The appointment of individuals to serve as Members of the Authority Board would not, in and of itself, constitute a conflict of interest for the Council Members whose sons are employed by the Authority. However, this Advice is expressly conditioned upon there being no understandings which would violate Sections 3(b) and /or 3(c) of the Ethics Law as set forth above. Conditioned upon the assumption that no such prohibited understandings exist, these Council Members may participate in making appointments to the Authority Board. 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 Mr. John F. Cambest February 6, 1992 Page 5 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 or the Municipality Authorities Act. Conclusion: As Members of the Monroeville Municipal Council ( "Council "), each Council Member is a public official subject to the provisions of the Ethics Law. Subject to the restrictions and qualifications noted above, the Council Members whose sons are employed by the Monroeville Water Authority ( "Authority ") may participate in appointing individuals to the Authority Board. This Advice is expressly conditioned upon the assumption that there are no improper understandings which would transgress Sections 3(b) and /or 3(c). 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. ncerely, Vincent '1. Dopko Chief Counsel