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HomeMy WebLinkAbout92-530Dear Ms. Thomson: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 10, 1992 Ms. Sally Thomson Star Route, Box 18 92 -530 Paupack, PA 18451 Re: Conflict, Public Official /Employee, County Commissioner, Immediate Family, Spouse, Judge. This responds to your letter of December 20, 1991, 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 County Commissioner with regard to official interaction with the County Judge who is the Commissioner's spouse. Facts: Having been elected to the Pike County Board of Commissioners on November 5, 1991, you seek the advice of the State Ethics Commission with regard to your prospective official interaction with your spouse, President Judge Harold A. Thomson, Jr., of the Court of Common Pleas of the 60th Judicial District. You note that the Judicial District's boundaries are those of Pike County, and that Pike County is a single judge county. Because you received the largest number of votes, it has been agreed by the other Commissioners -elect that you will be named Chairman of the Pike County Board of Commissioners for the next four years. You will be sworn in on January 2, and you will conduct the first Commissioners' meeting on January 9, 1992. You have submitted copies of correspondence between you and Judge I. Raymond Kremer, Chairman of the Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges, which correspondence consists of a prior letter of Judge Kremer dated August 9, 1988; your letter of January 9, 1991 and Judge Kremer's response dated January 22, 1991; and your letter dated December 20, 1991, all of which documents are incorporated herein by reference. Ms. Sally Thompson February 10, 1992 Page 2 Referencing the above correspondence, you note that the Judicial Ethics Committee has given you clear guidelines for conduct from the ethical perspective of the judiciary. You request similar guidance from this Commission. You seek advice regarding your latitude in fulfilling your obligations and responsibilities as a duly elected County Commissioner in all ' matters,. and the appropriateness of full official interaction between you and your spouse in your respective official capacities. Discussion: It is initially noted that you have submitted a general request for advice as to your official conduct within the parameters of the Ethics Law, and therefore the response set forth in this Advice is also general in nature. Should specific circumstances arise in the future which would require a more specific response, you may of course seek further advice from this Commission. As a County Commissioner for Pike County, Pennsylvania, you will upon entering office become a public official as that term is defined under the Ethics Law, and hence you will be 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 Ms. Sally Thompson February 10, 1992 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. 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 /employee himself, any member of his immediate family, or any business with which he or a member of his immediate family is associated. 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(f) of the Ethics Law provides: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public Ms. Sally Thompson February 10, 1992 Page 4 official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 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 Ms. Sally Thompson February 10, 1992 Page 5 governing where one a result remaining have cast abstained the tie otherwise body of a political subdivision, member has abstained from voting as of a conflict of interest, and the two members of the governing body opposing votes, the member who has shall be permitted to vote to break vote if disclosure is made as 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 to your circumstances, the Ethics Law would not impose any per se restrictions upon you with regard to fulfilling your official obligations and responsibilities as a County Commissioner based upon the fact that your spouse serves as the County's only Judge. Furthermore, it is recognized that due to the separation of powers between members of the County's Judiciary and the County's Commissioners as its chief executives, it is unlikely that situations would come up where you would confront conflicts of interest as defined in the Ethics Law through official interaction with your spouse. However, should specific factual circumstances arise which would implicate any of the above provisions of the Ethics Law, it is recommended that you seek further advice of this Commission as to such particular circumstances which may occur. 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 note addressed herein is the applicability of the County Code. Conclusion: As a County Commissioner for Pike County, Pennsylvania, you will upon entering office become a public official subject to the provisions of the Ethics Law. The Ethics Law would not impose any per se restrictions upon you with regard to fulfilling your official obligations and responsibilities as a County Commissioner based upon the fact that your spouse serves as the County's only Judge. However, the restrictions of Sections 3(a), (b), (c), (f) and (j) set forth above must be observed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Ms. Sally Thompson February 10, 1992 Page 6 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 52.12. Sincerely, 00.i44) Vincent J. Dopko Chief Counsel