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HomeMy WebLinkAbout93-522 ApfelbaumMichael M. - Apfelbaum, Esquire City of Sunbury 225 Market Street Sunbury, PA 17801 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 A DVICE OF COUNSE March 3, 1993 93 -522 Re: Conflict, Public Official /Employee, City Council Member, Use of Authority of Office or Confidential Information, Vote, Business with which Associated, Bank, Customers. Dear Mr. Apfelbaum: This responds to your letter of January 22, 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 city council member who is also employed by a bank, with regard to matters before the council involving bank customers. Facts: As Solicitor for the City of Sunbury, you request an advisory from the State Ethics Commission on behalf of City Council Member William Mackey concerning his employment at a Sunbury bank while he serves as a City Council Member. You state that Mr. Mackey has been very careful to abstain from all discussion or votes which would involve his employer. Moreover, Mr. Mackey has never voted on a matter which resulted in any personal financial gain. However, you state that this Commission recently issued an advisory that restricts public officials, who also work in banks, from involvement in any matters which involve customers of the banks. You state that this creates a cumbersome problem for your present City Council since Sunbury is a relatively small community with three banks. Further, one Council Member is married to a bank employee and the other Council Member who requests this advisory, is employed directly by the bank. You state that as a practical matter, the recent advisory seems to require the Council Member to ask each individual who Michael M. Apfelbaum, Esquire March 3, 1993 Page 2 comes before Council to divulge sensitive information concerning banking. You state that this creates a violation of the banker's confidentiality restrictions. Based upon the above, you request an advisory as to how Mr. Mackey should proceed in these matters. Discussion: As a Council Member for the City of Sunbury, Pennsylvania, Mr. William Mackey 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 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. Michael M. Apfelbaum, Esquire March 3, 1993 Page 3 "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 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 Michael M. Apfelbaum, Esquire March 3, 1993 Page 4 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 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. The bank which employs Mr. Mackey is by definition a business with which he is associated. In the event that the bank and /or a bank customer would have a matter pending before Mr. Mackey as a public official, a conflict would exist. Miller, Opinion 89 -024. 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. In each instance of a conflict of interest, Mr. Mackey must divest himself from any participation and must fully satisfy the disclosure requirements of Section 3(j) as set forth above. As for your claim that under these circumstances, compliance with the Ethics Law would create a violation of "the banker's confidentiality restrictions," you have failed to provide any legal citation to such "restrictions," and this Commission is unaware of any. However, the following considerations are noted. If any such confidentiality restrictions exist, it is likely that they are a matter of internal policy for the bank, rather than a statutory or Michael M. Apfelbaum, Esquire March 3, 1993 Page 5 regulatory promulgation. Second, if such confidentiality restrictions exist, it is questionable whether the mere disclosure that a particular individual or entity is a bank customer would "violate" such confidentiality. Third, if such were the case, in that instance a sufficient disclosure would be that a conflict existed under the Ethics Law, but that the specific basis for the conflict could not be identified without breaching a duty of confidentiality. Furthermore, the parameters of the Ethics Law would rarely, if ever, create "a cumbersome problem" for Mr. Mackey, as you allege. As a practical matter, municipal agendas are ordinarily prepared in advance of a meeting so that Mr. Mackey would have sufficient time to check for conflicts without having to question each individual as he or she comes before Council. 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 respective municipal code. Conclusion: As a Member of City Council for the City of Sunbury, Pennsylvania, Mr. William Mackey is a public official subject to the provisions of the Ethics Law. Mr. Mackey would have a conflict of interest in matters before him as a public official involving the bank which employs him or its customers. In each instance of a conflict of interest, Mr. Mackey would be required to abstain from any participation and the disclosure requirements of Section 3(j) of the Ethics Law would have to be satisfied, as outlined above. 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 Michael M. Apfelbaum, Esquire March 3, 1993 Page 6 to 51 Pa. Code 52.12. Vincent `J . Dopko Chief Counsel cerely,