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Home My WebLink About93-568 CowdenJames L. Cowden, Esquire 93 -568 Strokoff & Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108 Re: Conflict, Public Official /Employee, Member, Borough Council, Use of Authority of Office or Confidential Information, Immediate Family, Son-in-taw, Borough Police Officer, Collective Bargaining Agreement, Vote. Dear Mr. Cowden: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 26, 1993 This responds to your letter of May 19, 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 member of borough council from participating in discussions and voting on a police contract and the borough budget when her son -in -law is a borough police officer and a part of the budget funds the police department. Facts: You request an advisory from the State Ethics Commission on behalf of Kay Sutch, who was recently appointed to serve on the Highspire Borough Council to fill a vacancy. Ms. Sutch has a son- in-law who is a Borough police officer: Her son -in -law was a police officer prior to his marriage to Ms. Sutch's daughter. The police force is represented by the Highspire Police Officers Association in collective bargaining. Negotiations are conducted between the union and a group representing the Borough. You state that although Ms. Sutch does not belong to the negotiating group, the group receives instruction from the Borough Council and the negotiated contract is ratified by the Council. Based on the above, you request an advisory from the State Ethics Commission as to Ms. Sutch's ability to discuss and vote on the police contract and her ability to vote on other matters James L. Cowden, Esquire May 26, 1993 Page 2 concerning the Police Department, including voting on the Borough budget which funds the Police Department. Discussion: As Member of Borough Council for Highspire, Pennsylvania, Ms. Kay Sutch is a public official as that term is defined under the Ethics Law, and hence she 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. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide James L. Cowden, Esquire May 26, 1993 Page 3 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 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. James L. Cowden, Esquire `= May 26, 1993 Page 4 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) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. ,gge, 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. However, in this case, since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since Ms. Sutch and her son -in -law are not in a relationship delineated above, Section 3(a) of the Ethics Law not restrict her prospective official participation in' matter pertaining to the police contract or the Police Department. However, this Advice is conditioned upon the assumption that neither Ms. Sutch nor any immediate family member, nor any business with which she or a member of her immediate family is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from her proposed conduct. ee, Baker, Opinion 89 -016; Boyer, Advice No. 91 -511; Luzi, Advice No. 92 -625. 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 Borough Council for Highspire, Pennsylvania, Ms. Kay Sutch is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict her future official conduct in matters involving the police contract or the Police Department on which her son -in -law serves. Ms. Sutch's son -in -law is not a member of her immediate family. This Advice is conditioned upon the assumption that neither Ms. Sutch, nor any other immediate family member, nor any business with which she or a member of her immediate family is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from the proposed official conduct. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. James L. Cowden, Esquire May 26, 1993 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. Anv 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 513.2(h). cerely, Vincent Dopko Chief Counsel