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HomeMy WebLinkAbout94-537 KellyCharles G. Kelly P.O. Box 306 Wampum, PA 16157 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 1, 1994 94 - 537 Member, Borough on Bills Including Re: Simultaneous Service, Borough Council Employee, Use of Authority Office, Vote Wages as Employee. Dear Mr. Kelly: This responds to your letter of February 28, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law-imposes any prohibition or restrictions upon a Borough Council Member from also serving or being employed as a Borough Employee and voting on bills which include his wages as an employee. Facts: You are a Member of Borough Council. You are also a Borough employee. At the February Council meeting, you were approached by the Solicitor who advised you of a possible conflict of interest concerning your voting on bills. You state that he told you that you should abstain from voting to pay the bills because your wages, as a Borough employee, are listed on the bills. The Solicitor also stated that the reason he believes you have a conflict is because of the overtime hours, which were the result of winter snow removal. You are responsible for the overtime hours of two employees during the winter, one of which is yourself. You questioned this advice since all Council Members are compensated and they vote on the bills. You state that you have been operating in this manner for 17 years, pursuant to instruction by Council, and you feel that it is already an established policy, similar to set wages. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a Member of Borough Council, you are a "public official" as that term is defined in the Ethics Law and hence you Kelly, Charles G., 94 -537 April 1, 1994 Page 2 are subject to the provisions of the Ethics Law. 65 P.S. S402; 51 Pa. Code S11.1. 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 under the Ethics Law: 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 any thing of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Kelly, Charles G., 94 -537 April 1, 1994 Page 3 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. 65 P.S. S403(j). 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 applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve both as a public official /employee and as a Borough Employee. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a borough employee. The main prohibition under the Ethics Law and Opinions of the Kelly, Charles G., 94 -537 April 1, 1994 Page 4 Ethics Commission is that you may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse or act in any manner whereby you are using your public office for your private pecuniary benefit. For example, in this case, it would be contrary to the Ethics Law for you, as Borough Council Member, to use your office in such a way that you would be creating more overtime hours for you as a Borough employee which would result in your receiving additional compensation as Borough employee. Deitrick, Opinion 89 -022 and Smith Opinion, 89-010. In the situation outlined above, since you are the Council Member responsible for your own overtime, you are using your position of public office for the receipt of a private pecuniary-benefit; that being overtime hours. It is necessary that you remove yourself from this process so as to avoid a conflict of interest. Turning to the question of voting on bills which include your wages as Borough employee, 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, a member of his immediate family a •business with which he or a member of his immediate family is associated. Thus, it is clear that you would have a conflict of interest as to any matter 'before you in your capacity as a Borough Council Member involving: your own hiring, continued employment, and compensation as borough employee. You would be prohibited by the Ethics Law from voting on bills which included your wages as a Borough employee. In each instance of a conflict of interest, you would be required to fully abstain and to publicly announce and disclose your abstention and the reasons for same, both orally and by filing a written memorandum to thee appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise additional advice may be sought from the commission . Lastly, 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 is the applicability of the Borough Code. Conclusion: As a Member of Borough Council, you are a "public official" subject to the provisions of the Ethics Law. The Ethics Law does not prohibit your simultaneous service as a Borough Council Member and Borough employee. Section 3(a) of the Ethics Law would prohibit you from using your position to receive a private pecuniary benefit by setting your own working hours as a Borough employee; the Ethics Law requires your removal from such function of determining your own working hours and the substitution Kelly, Charles G., 94 -537 April 1, 1994 Page 5 of some other Council Member for that function. In addition, you may not vote on the approval of your wages Further, in your capacity as a Borough Council Member, Section 3(j) must be followed as to any conflict of interest as set forth above. Lastly, the propriety of the proposed course of 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 Opinion 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). � Si cerely, Vincent J. Dopko Chief Counsel