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HomeMy WebLinkAbout94-544 BattistoDear Representative Battisto: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108.1470 TELEPHONE (717) 783 -1 610 ADVICE OF COUNSEL April 7, 1994 The Honorable Joseph W. Battisto Post Office Box 208 Main Capitol Building Harrisburg, PA 17120 -0028 94 -544 Re: Conflict, Public Official /Employee, Member of Borough Council, Private Business or Employment, Employee of Student Activity Association, Inc., Business with which Associated, Use of Authority of Office or Confidential Information, Vote, Zoning Change Request of University. This responds to your letter of March 10, 1994 in which you requested advice from the State Ethics Commission on behalf of Mr. Roger L. DeLarco. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Member of Borough Council who is an employee of a Student Activity Association from voting on a zoning change request made by the University. Facts: You have forwarded a letter from a constituent, Roger L. DeLarco, requesting an advisory from the State Ethics Commission. Mr. DeLarco is a Member of the East Stroudsburg Borough Council. He represents the Third Ward which encompasses a large portion of East Stroudsburg University which represents approximately 50% of his constituent base. Mr. DeLarco is also employed by the Student Activity Association, Inc. (SAA) as director of the University Store. The University Store is operated by the SAA. He states in his letter that he receives salary and benefits from the SAA. He receives no compensation based on enrollments or store sales. Further, he is not an employee of East Stroudsburg University. Mr. DeLarco has included pages from the Student Handbook which describes the SAA and its relationship with the University. Those. Battisto, The Honorable JosephW., 94 -544 April 7, 1994 Page 2 pages are incorporated herein by reference, however, it is specifically noted that the SAA is an incorporated entity under the laws of the Commonwealth of Pennsylvania. Currently, the University is requesting a zoning change for a parcel of property it owns. You state that the University wishes to construct an administrative building. Mr. DeLarco states that he has no financial interest in the zoning change and you indicate that he will not directly or indirectly profit in any way from any decision regarding the zoning change. You further state that Mr. DeLarco has no financial interest in any company that could perform work on the land for the University. Based upon the above, an advisory is requested from the State Ethics Commission as to the applicability-of the Ethics Law in this situation. 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 material facts relevant to the inquiry. 65 P.S. SS407(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 the Borough of East Stroudsburg, Mr. Roger L. DeLarco 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: 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 Battisto, The Honorable ,Os Fh W,,_,94 -544 April 7, 1994 Page 3 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. "Business. ". Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self- employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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: Battisto, The Honorable Joseph W., 94 -544 April 7, 1994 Page 4 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 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. 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 office public office or confidential Battisto, The Honorable ,Josoph April 7, 1994 Page 5 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 this case, it is clear that the business with which Mr. DeLarco is associated is the SAA, not the University. Since the SAA and the University are separate and distinct entities, he would not have a conflict as to any business with which he is associated. The restrictions set forth above would not apply to Mr. DeLarco and he would not be prohibited from voting on the matter of the zoning change brought before the Borough Council by the University. 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 Borough Code. Conclusion: As a Council Member for the Borough of East Stroudsburg, Mr. Roger L. DeLarco is a public official subject to the provisions of the Ethics Law. The business with which he is associated is the SAA, not the University. Therefore, subject to Sections 3(b) and 3(c) , which apply to everyone, Mr. DeLarco would not have any conflict as to the zoning change matter brought before the Borough Council by the University. 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 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 Battisto, The Honorable JolsepI W., .94 -544 April 7, 1994 - -' Page 6 at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). L ncerely, Vincent J. Dopko Chief Counsel