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HomeMy WebLinkAbout94-533 LoriganJudith A. Lorigan 7090 Dumbarton Place Bethel Park, PA 15102 94 -533 Dear Ms. Lorigan: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 28, 1994 Re: Conflict, Public Official /Employee, Member of Council, Use of Authority of Office or Confidential Information, Bank Manager, Vote, Zoning Change, Construction by School District, Contractor obtaining Financing from Bank. This responds to your letter of February 25, 1994 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 Council Member who is a Manager of a Bank from voting on a zoning change so that the school district will be able to construct a skating rink with the contractor obtaining financing from the bank. Facts: You are a Member of Council for Bethel Park, which you describe as a Home Rule Municipality. You are also employed by Integra Bank /Pittsburgh as Manager of the branch office in Bethel Park. Integra Bank operates 252 branch offices in western Pennsylvania. Bethel Park Council will be voting on a zoning change regarding the development of the skating rink. You state that the community is divided on the issue. At a recent meeting with the Bethel Park School Board and developers of a newly proposed skating rink to be constructed on school grounds, the developer indicated that Integra Bank would be providing the financing for the project. Even though the financing and other accounts of the developers are corporate accounts and have nothing to do with your branch, and you do not believe that there is a conflict of interest since your branch receives no credit nor do you personally benefit, you nevertheless seek an advisory from this Commission. You indicate that if the developer had not mentioned financing, you never would have known of the Lorigan, Judith A., 94 -533 March 28, 1994 Page 2 proposed transaction with the bank. You state that borrowing such as these are maintained and financed through the headquarter loan offices and never involve branch managers. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. S5407(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 material facts relevant to the inquiry. 65 P.S. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Council Member for Bethel Park, 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. Lorigan, Judith A., 94 -533 March 28, 1994 Page 3 "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 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 Lorigan, Judith A., 94 -533 March 28, 1994 Page 4 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 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. You are further 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. Use of authority of office includes discussing, conferring with others, lobbying for ".a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. In applying the Ethics Law to this case, it is noted that the Ethics Law, pursuant to Section 3(a), prohibits a public 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 any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated. In Amato, Opinion 89 -002, the issue before the Commission was whether a first class township commissioner could vote on development projects where the developers hire general contractors who hire subcontractors who contract with a business with which that Commissioner was associated. The State Ethics Commission held that since a financial relationship developing between a subcontractor and the commissioner's company could not be reasonably and legitimately anticipated, the activity being twice removed from the commissioner's initial vote, and further, given the fact that the commissioner worked for his company on a straight salary rather than on a commission basis, the commissioner was not Lorigan, Judith A., 94 -533 March 28, 1994 Page 5 prohibited from voting on the project. In this case, if it is factually true that there is no reasonable expectation of the development of a relationship between the bank and the contractor, the Ethics Law would not prohibit you from voting on the zoning change. 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 Optional Home Rule Charter Law. Conclusion: As Member of Bethel Park Council, you are a public official subject to the provisions of the Ethics Law. In this case, subject to the limitations and qualifications set forth above, the Ethics Law would not prohibit you from voting on the zoning change issue. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). cerely, )07v(4-d Vincent J. Dopko Chief Counsel