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HomeMy WebLinkAbout93-595 BernerR. Thomas Berner Borough of State College 118 South Fraser Street State College, PA 16801 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 3, 1993 93 -595 Re: Conflict, Public Official /Employee, Borough Council Member, Uncompensated Position, Vote, Leave of Absence. Dear Mr. Berner: This responds to your letter of July 31, 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 non - compensated Borough Council Member from voting in favor of awarding himself a leave of absence from the Council. Facts: As a Member of the Borough Council of State College, Centre County, you serve without receiving any compensation. In the near future, you may seek a five -month leave of absence so that you may teach in China. You question whether you may vote to approve your leave. You add that you do not stand to gain financially if you receive the leave of absence and further, by receiving the leave, the community will be able to retain a Council Member with almost ten (10) years of service. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §S407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the materials facts relevant to the inquiry. 65 P.S. S5407(10), (11). An advisory only affords a defense to the extent the requestor has Berner, 93 -595 September 3, 1993 Page 2 truthfully disclosed all of the material facts. As Council Member for the Borough of State College, 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. 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. 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 Berner, 93 -595 September 3, 1993 Page 3 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. 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 Berner, 93 -595 September 3, 1993 Page 4 under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Under Section 3(j), if during the discharge of your official duties you would be called upon to vote on a matter that would result in a conflict of interest, you would be required to abstain and comply with the provisions and restrictions set forth in that section. That is, if voting for your leave of absence constitutes a conflict of interest, you may not vote. If, on the other hand, such voting would not be considered a conflict of interest, then you may do so without violating the Ethics Law. The use of the authority of your position of Borough Council Member for private pecuniary benefit would constitute a conflict of interest. Since you have factually stated that there would be no private - pecuniary benefit in this case, there would be no conflict of interest based upon the foregoing factual assumption. Since there is no conflict of interest, the provision of Section 3(j) would not apply and you would not be required to abstain from voting on the matter of your leave of absence. Therefore, you may vote on your own leave of absence. 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 Member of Borough Council for the Borough of State College, you are a public official subject to the provisions of the Ethics Law. You may not vote on your own leave of absence if such voting would result in a conflict of interest. Based upon the factual assumption that no pecuniary benefit is to be received by you in this case, no conflict of interest results in which case you may vote on your own leave of absence. 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 Berner, 93 -595 September 3, 1993 Page 5 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). Sincerely, 1 ,/fiLee.,A- 4pkM Vincent J. Dopko Chief Counsel