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HomeMy WebLinkAbout93-521 CowdenDear Mr. Cowden: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 3, 1993 James L. Cowden, Esquire 93 -521 Strokoff & Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108 Re: Conflict, Public Official /Employee, Borough Council Member, Business with which Associated, Fire Company, Chief. This responds to your letter of January 20, 1993, 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 also serves as chief of a fire company within the borough, with regard to matters pertaining to the fire company. Facts: You request an advisory from the State Ethics Commission on behalf of Mr. Herman Himes, who was recently appointed to the Highspire Borough Council to fill a vacancy. Mr. Himes also serves as Chief of the Citizens Fire Company No. 1 in Highspire, which is a volunteer fire company located within the Borough. You state that a relationship exists between the fire company and the Borough which is partially statutory and partially voluntary, and which results in the Borough providing certain financial support to the fire company. As a Borough Council Member, Mr. Himes will be called upon to participate in decision making concerning the Borough budget and other appropriations and actions that would benefit the fire company. At the same time, Mr. Himes receives certain perquisites of office from the fire company. You set forth the following background information: Citizens Fire Company has been located within the Borough for many years. Because it is a voluntary company, the Borough is required by statute to provide workmen's James L. Cowden, Esquire March 3, 1993 Page 2 compensation coverage for volunteer firemen, including the Chief. The Borough has also traditionally made an appropriation to the fire company in its annual budget. For example, the 1993 budget provides for an appropriation for fire protection of $37,326.00, payable to either the fire company or for the exclusive benefit of the company or its volunteer firemen. This includes the following entries: 1. $12,000.00 toward payment of the fire company's insurance costs; 2. $3,726.00 for payment of workmen's compensation coverage; 3. $14,100.00 toward the operating expenses of the fire company; and 4. $7,500.00 to an escrow account toward the purchase of a new fire truck planned for 1995. Borough Council also passes through to the fire company state funds that are restricted for distribution to firemen's relief associations. Several miscellaneous matters normally come up before Council each year that would benefit the fire company. For example, the fire company raises a large part of its revenues from an annual carnival. Borough Council normally authorizes the Borough Highway Department to provide labor in setting up carnival stands. Council is sometimes called upon specifically to authorize police overtime for security at the carnival. In the past year, Council was asked to pay the cost of Hepatitis B vaccinations for volunteer firemen and ambulance drivers. As chief of Citizens Fire Company, Councilman Himes receives the use of a truck as well as $75.00 per month toward his vehicle expenses. The chief uses the truck almost all the time for personal as well as fire company business, because he needs a vehicle in which to respond to any emergency call. The $75.00 James L. Cowden, Esquire March 3, 1993 Page 3 per month that he receives is used to pay for vehicle expenses, including gasoline and the service charges on a telephone in the truck that is absolutely necessary to his efficient performance as fire chief. These expenses are not specifically accounted for, however. The Chief draws no salary or wages whatsoever, and has no pecuniary interest in the fire company, which is a non - profit corporation. Letter of January 20, 1993, at 1 -2. You perceive the following issues as arising under the Ethics Law as a result of Council Member Himes' service as fire chief: 1. May Mr. Himes participate in discussions and votes on matters that indirectly affect the fire company, such as the entire General Fund budget for the Borough? 2. May Mr. Himes participate in Council committee meetings at which the appropriations to the fire department are discussed and recommended to Council? 3. May Mr. Himes participate in discussions and voting upon, specific matters that come before Council that affect only the fire company, such as the authorization of police overtime, at Borough expense, to patrol the firemen's carnival? Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a Member of Council for Highspire Borough, Pennsylvania, Mr. Herman Himes is a public official as that term is defined under the Ethics Law, and hence he 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 James L. Cowden, Esquire March 3, 1993 Page 4 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 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 public official or James L. Cowden, Esquire March 3, 1993 Page 5 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is- unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91-523 - S. 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. Generally, depending upon the circumstances in a given case, James L. Cowden, Esquire March 3, 1993 Page 6 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 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, the facts which you have submitted are somewhat unclear as to the fire company's link with the Borough. It is clear that the Borough is contributing funds towards expenses of the fire company, but it is unclear as to whether those payments are targeted toward specific operating expenses, such as the Chief's truck and related expenses, or whether the funds are contributions to the fire company which itself then determines how the funds shall be allocated. However, based upon the totality of the facts submitted, it would appear that the Citizens Fire Company No. 1 of Highspire, a non - profit corporation and volunteer fire company located within the Borough of Highspire, would be a "business" as opposed to part of the governmental body of the Borough itself. Thus, the Citizens Fire Company No. 1 of Highspire would by definition be a business with which Mr. Himes is associated, given his role as Chief of the fire company. Pursuant to Section 3(a) of the Ethics Law, Council Member Himes would have a conflict of interest as to any matter before the Borough Council where the use of authority 'of office or confidential information received by holding that public position would result in a private pecuniary benefit for the Council Member himself, any member of his immediate family, or any business with which he or a member of his immediate family is associated including but not limited to the fire company. Such matters would include but not be limited to funding for the fire company. Turning to your specific inquiries, you first ask whether Council Member Himes may participate and vote on matters indirectly affecting the fire company, such as the entire General Fund budget James L. Cowden, Esquire March 3, 1993 Page 7 for the Borough. To the extent such participation or vote would financially benefit Himes and /or decide allocations to the fire company, a conflict of interest would exist. However, if fire company matters were to be considered separately -- with Council Member Himes abstaining and making the necessary disclosures -- and then merely be included on the budget as previously determined items, the conflict would not exist. As for your second inquiry, you ask whether Council Member Rimes may participate at Council committee meetings at which the appropriations to the fire department are discussed and recommended to Council. In that Council Member Himes has a conflict, such participation would be prohibited as a use of authority of office. You are advised that the use of authority of office is more than the mere mechanics of voting, and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Finally, as for your third specific inquiry, you ask whether Council Member Himes may participate in discussions and votes upon specific matters that come before Council affecting only the fire company, such as the authorization of police overtime, at Borough expense, to patrol the firemen's carnival. A conflict would exist because participation or voting in such matters would constitute the use of authority of office for the private pecuniary benefit of the fire company, in that, by having the services provided at Borough expense, the fire company would not be required to pay for them. In each instance of a conflict of interest, Mr. Himes would be required to abstain fully and to fully satisfy 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 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 Member of Council for the Borough of Highspire, Pennsylvania, Mr. Herman Himes is a public official subject to the provisions of the Ethics Law. The Citizens Fire Company No. .1 of Highspire, which Council Member Himes serves as Chief, is a business with which he is associated. Council Member Himes may not use the authority of office or confidential information received by holding such public position for the private pecuniary benefit of the Council Member himself, any member of his immediate family, or any business with which he or a member of his immediate family is associated, including but not limited to the said fire company. such. James L. Cowden, Esquire March 3, 1993 Page 8 Such conflicts of interest would include but would not be limited to funding for the fire company, or the authorization of police overtime, at Borough expense, to patrol the firemen's carnival. In each instance of a conflict of interest, Council Member Mimes must abstain fully, and the disclosure requirements of Section 3(j) as set forth above must be fully 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. 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. i ncerely, (4-c'4\‘ Vincent J. Dopko Chief Counsel