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HomeMy WebLinkAbout92-652Mr. David J. Stewart Borough of Emporium Municipal Building 421 North Broad Street Emporium, PA 15834 Dear Mr. Stewart: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 9, 1992 92-652 Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office, Voting, Increase in Employee Wages or Benefits, Member of Immediate Family, Spouse. This responds to your letter of October 30, 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 a borough council member with regard to a proposed general increase in wages and /or benefits for the borough employees, where the council member's spouse is an office clerk for the borough. Facts: You state that you are an elected Councilman for the Borough of Emporium and that your wife is employed by the Borough as an office clerk. You ask whether it would be a conflict of interest for you to vote on a general increase in wages and /or benefits, such as holiday pay or health benefits. Discussion: As a Council Member for the Borough of Emporium, 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. Mr. David J. Stewart December 9, 1992 Page 2 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 unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. 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, Mr. David J. Stewart December 9, 1992 Page 3 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 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 circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited 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. By definition, your wife is a member of your "immediate family." However, the facts which you submitted were limited, and do not enable a conclusive determination of whether your spouse would be a member of a qualifying subclass under the following exclusionary language in the definition of "conflict or conflict of interest ": "`Conflict' or `conflict of interest' does not include Mr. David J. Stewart December 9, 1992 Page 4 an action . . . which affects to the same degree . 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." 65 P.S. S402. Assuming that your wife is one of a qualifying subclass of Borough employees who would be affected by the proposed increase in wages and /or benefits, and that your wife would not benefit to any extent different or unique from the other members of the subclass, the aforesaid exclusionary language would apply and there would be no conflict of interest if you would participate in the vote itself. See, Davis, Opinion 89 -012, holding that the Ethics Law would not preclude a school director from voting on a wage request for the school police, of which his father was a member, provided that there was more than one policeman in the class and provided that the school director's father was affected to the same degree as all other school police as to the wage request. Be advised that in Van Rensler, Opinion 90 -017, the Commission held accordingly as to the vote by school directors to ratify a collective bargaining agreement when members of their respective immediate families were school district employees represented by the bargaining units, but further concluded that the Ethics Law would preclude those school directors from participating in the negotiation process leading to such finalized agreement. You would similarly be precluded from participation in any such negotiation process, under the Van Rensler decision. 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 Borough Code. Conclusion: As a Borough Council Member for the Borough of Emporium, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. The Ethics Law would not preclude you from voting on a proposed general increase in wages and /or benefits for Borough employees when your wife is an office clerk for the Borough, conditioned upon the assumption that your wife would be a member of a qualifying subclass of Borough employees under the exclusionary language of the definition of "conflict or conflict of interest," 65 P.S. S402, and that your wife would be affected by the proposed increase in wages and /or benefits to the same degree as all other members of the subclass. Lastly, the propriety-of the proposed conduct has only been addressed under the Ethics Law. Mr. David J. Stewart December 9, 1992 Page 5 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. S' cerely, 17 Vincent . Dopko Chief Counsel