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HomeMy WebLinkAbout92-533STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL ' February 12, 1992 k Ms. Judith A. Lorigan 92 -533 7090 Dumbarton Place Bethel Park, PA 15102 Re: Conflict, Public Official /Employee, Member, Municipal Council, Use of Authority of Office, Vote, Business with which Associated, Clients Dear Ms. Lorigan: This responds to your letter of December 23, 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 member of a municipal council, who is also a manager of a commercial bank, with regard to matters before the council involving bank customers. Facts: As a newly elected member of Council in the Municipality of Bethel Park, you seek the advice of the State Ethics Commission with regard to matters before the Council involving customers of Equibank, a commercial bank in Bethel Park where you are employed as a manager. You note a prior telephone conversation with Assistant Counsel for this Commission in which it was indicated that the circumstances could present aknflict of interest for you, and it was suggested'that you seek .a formal advisory. You also note that Bethel Park's Solicitor agre d that a formal decision is required. One of your commercial bank customers is seeking a zoning change from RT to Cl to build an office building. You acknowledge that as a bank manager and as a potential source for financing this customer's project you feel reluctant to vote on the issue, although you do not envision how any personal gain could be attained. You state that you could often be in a position where your occupation as a bank manager in Bethel Park could be construed to be a conflict of interest. You seek some guidelines that you may draw upon as situations arise in regard to your bank customers. L ►1 Ms. Judith A. Lorigan February 12, 1992 Page 2 Based upon all of the above, you seek expedited response, noting that another issue will be soon be on the Council's agenda regarding one of your customers, and you. do not choose to abstain again unless necessary. Discussion: As a Member of Council in the Municipality of Bethel 1 Park, you are a public official as that term is defined under the Ethics Law, and hence you . are 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 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 1� Ms. Judith A. Lorigan February 12, 1992 Page 3 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 publicrofficial 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 Ms. Judith A. Lorigan February 12, 1992 Page 4 herein. governing where one a result remaining have cast abstained the tie otherwise In the case of a three- member 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 of the Ethics Law to the facts that 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 confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As your employer, Equibank is by definition a business with which you are associated. In the event that Equibank and /cr any of Equibank's customers, such as this particular commercial bank customer, would have a matter pending before you as a public official, or if you as part of your official duties would be required to participate, review or pass upon such ma=ters in your official capacity, a conflict would exist. Miller, Opinion 89 -024. In such instances, it will be necessary that you remove yourself from any participation of any nature whatsoever. As noted in Miller, matters which come before a public official /public employee involving his private business /employer or private clients place a public official /public employee in a situation where he is faced with conflicting interests. In his private capacity, his duty is owed to a private employer as well as to the private clients, while in his capacity as a public official /public employee, his primary duty is to act in the best interest of the governmental body with the duty being owed to the public rather than to private clients. Id.; See also, Brooks, Opinion 89 -023. Ms. Judith A. Lorigan February 12, 1992 Page 5 It is clear that in your capacity as a public official, you would have a conflict of interest as to any matters involving this particular commercial bank customer and /or any other Equibank customers. In each instance of a conflict of interest, you must divest yourself from any participation of any nature whatsoever including, but not limited to, participating in discussions, voting, lobbying for a particular result, or otherwise using the authority of office. Furthermore, in each instance where a conflict of interest arises, you must observe the disclosure requirements of Section 3(j) as set forth above. 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 3o been considered in that they do not involve an interpretation of�he Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As a Member of Council in the Municipality of Bethel Park, you are a public official subject to the provisions of the Ethics Law. You would have a conflict of interest as to the zoning change sought by the commercial bank customer of Equibank. You would have a conflict of interest in matters before you as a public official involving Equibank and /or its customers. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above would have to be satisfied. 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 reason to challenge same, you Commission review this Advice. A Commission will be scheduled and a this Advice or if you have any may request that the full personal appearance before the formal Opinion from the • Ms.,Judith A. Lorigan February 12, 1992 Page 6 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. Sincerely, Vincent J. Dopko Chief Counsel • 1 1