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HomeMy WebLinkAbout92-656Mr. Kevin J. Lisovich, Sr. 413 Bluff Street Belle Vernon, PA 15012 Dear Mr. Lisovich: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 14, 1992 (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 92-656 Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office or Confidential Information, Business with which Associated, Volunteer Fire Company. This responds to your letter of November 11, 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 who is also a fire fighter but not an officer in a volunteer fire company which serves the borough, with regard to matters concerning the fire company. Facts: As a Council Member for the Borough of Belle Vernon and a volunteer fire fighter for the Belle Vernon Volunteer Fire Company, you request an advisory from the State Ethics Commission as to whether, as a Council Member with "nothing personal to gain," you may vote on matters concerning the fire company. You state that you believe that the fire company is not part of the Borough even though the Borough donates $1000.00 per year for utilities and pays for fuel and oil for the fire and rescue vehicles. You state that at the present time, you hold no offices for the fire company. Discussion: As a Council Member for the Borough of Belle Vernon, 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. Mr. Kevin J. Lisovich, Sr. December 14, 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. "Business." Any corporation, partner- ship, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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 Mr. Kevin J. Lisovich, Sr. December 14, 1992 Page 3 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 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 Mr. Kevin J. Lisovich, Sr. December 14, 1992 Page 4 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. Depending upon the circumstances in a given case, a fire company may be viewed as part of a governmental body such as a borough, or as a private entity meeting the definition of "business" as set forth in the Ethics Law and above. If a fire company is part of the governmental body in which the public official /public employee in question serves, it may generally be said that a private pecuniary benefit to the fire company alone would not present a conflict of interest for the public official. Only if there were additional circumstances, such as if the public official /public employee or a member of his immediate family would also derive a private pecuniary benefit, could there be a conflict of interest. If, on the other hand, the fire company is a "business," there is the potential for a conflict of interest solely based upon a private pecuniary benefit to the fire company, because the fire company is then an entity separate from the governmental body. The issue is whether the fire company is a "business with which [the public official /public employee] is associated," as that term is defined in the Ethics Law. That definition would include any business of which the public official /public employee or a member of his immediate family is a director, officer, owner, employee, or has a financial interest. In this case, it is clear that the Belle Vernon Volunteer Fire Company is not a business with which you are associated because you are not an officer but are serving as a volunteer fire fighter. Thus, in matters where the sole private pecuniary benefit would be for the fire company itself, you would not have a conflict of interest regardless of the nature of the fire company. A conflict of interest under the Ethics Law would only arise in matters where you, a member of your immediate family, or a business with which you are associated (not the fire company) would receive a private pecuniary benefit. Based upon this conclusion, the status of the Belle Vernon Volunteer Fire Company as either a part of the governmental body or as a private business entity need not be addressed in this case. 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 Council Member for the Borough of Belle Vernon, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. The Belle Vernon Volunteer Fire Company is not Mr. Kevin J. Lisovich, Sr. December 14, 1992 Page 5 a business with which you are associated. You would not have a conflict of interest as to matters concerning the Belle Vernon Volunteer Fire Company where there would be no private pecuniary benefit to you, a member of your immediate family, or a business with which you are associated. 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, ncent Dopko Chief Counsel