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HomeMy WebLinkAbout93-599 YewcicDear Mr. Yewcic: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 7, 1993 Richard G. Yewcic President, Westmont Borough Council Borough of Westmont 1000 Luzerne Street - Westmont Johnstown, PA 15905 Re: Conflict, Public Official /Employee, Member of Borough Council, Member of Municipal Water Authority, Vote to file Petition for Curative Amendment and Complaint in Equity against the Borough, Serving as a Member of Borough Council at a Hearing on Petition for Curative Amendment. This responds to your letter of August 9, 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, who is also a Member of a Municipal Water Authority, from participating, as a Member of the Borough Council, at a hearing on a Petition for Curative Amendment where, as a Member of the Municipal Water Authority, he voted in favor of filing the Petition against the Borough. Facts: You are President of the Westmont Borough Council. You request an Advisory as to certain conduct of Council Member Frank Bononno. At the Westmont Borough Council Meeting on July 14, 1993, Mr. Bononno authorized the Borough to seek this advisory and you have provided this Commission with a certification from the Borough Secretary regarding such authorization, which is incorporated herein by reference. Mr. Bononno was elected by the Westmont Borough Council to serve as a Member of the Greater Johnstown Water Authority (Authority), a municipal authority established under the Pennsylvania Municipal Authorities Act. This Authority was created by the municipalities of Westmont Borough, Upper Yoder Township and 93 -599 Yewcic, 93 -599 September 7, 1993 Page 2 the City of Johnstown. Mr. Bononno receives compensation as a Member of the Authority. As a Member of Westmont Borough Council, Mr. Bononno also receives compensation. Recently, the Authority, including Mr. Bononno, voted to file two (2) actions against Westmont Borough. The first action was a Complaint in Equity to compel the Zoning Hearing Officer to issue a building permit to the Authority to construct an elevated water tank which exceeds the height restriction of the Westmont Borough Zoning Ordinance. In conjunction with the Complaint in Equity, the Authority also filed a Petition for Curative Amendment under the Pennsylvania Municipalities Planning Code, 53 P.S. §10609.1 and 10916.1, to compel Westmont Borough to grant a public hearing on the issue of eliminating the height restriction for public utilities in its zoning code, in order to permit the Authority to construct a water tank which would exceed the current height restriction. You state that the Municipalities Planning Code compels Westmont Borough to grant a public hearing when a Petition for Curative Amendment is filed. Westmont Borough Council Members will sit at the public hearing, take testimony and evidence, deliberate and decide the Petition for Curative Amendment. Based on the above, you request advice as to whether a conflict exists for Mr. Bononno, a Member of the Westmont Borough Council and the Authority, if he sits with Westmont Borough Council and hears and decides the issue of whether the Petition for Curative Amendment should be granted. 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. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of Westmont Borough Council and as a Member of the Greater Johnstown Water Authority, Mr. Frank Bononno 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: Yewcic, 93 -599 September 7, 1993 Page 3 Section 3. Restricted Activitie. (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 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. The Ethics Law pursuant to Section 3(a) prohibits a public Yewcic, 93 -599 September 7, 1993 Page 4 official from using the authority of public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In this case there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising merely from serving on the Authority and voting to file a Petition for Curative Amendment and then sitting on Borough Council during the hearing on the Petition. The foregoing is based upon the factual assumption that there would not be any private pecuniary benefit to him as a result of his actions. This advice also expressly assumes that Sections 3(b) and 3(c) are not applicable in that there is no giving or receiving of anything of monetary value with an understanding that the public official's vote would be influenced thereby. The propriety of the proposed conduct has only been addressed under the Ethics Law. The Ethics Law does not cover the general common law concept of conflicts of interest. This Commission can only address 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 or the Pennsylvania Municipal Authorities Act. Conclusion: As Member of the Westmont Borough Council and the Greater Johnstown Water Authority, Mr. Frank Bononno is a public official subject to the provisions of the Ethics Law. While serving as a Member of the Westmont Borough Council, he may participate in a hearing on a Petition for Curative Amendment which, as a Member of the Authority, he voted to file against the Borough, subject to the qualifications noted 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. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission Yewcic, 93-599 September 7, 1993 Page 5 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 S13.2(h). ?llcerely, Vincent Dopko Chief Counsel