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HomeMy WebLinkAbout94-576 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 21, 1994 94 -576 Re: Conflict, Public Official /Employee, Borough, Council Member, Medical Insurance, Borough Paid Medical Insurance. This responds to your letter of May 23, 1994 in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough council member from voting to award himself and his dependents borough paid medical insurance. Facts: As Solicitor for A Borough, you have been asked by Borough Council Member B to make an advisory request regarding an amendment to the Pennsylvania Borough Code which was effective on December 16, 1992 and which permitted Boroughs to appropriate monies from the Borough treasury for medical insurance for the Mayor, Members of Council and their dependents. 53 P.S. 546202(37). You inquire as to whether the Ethics Law would prohibit a sitting Member of Council from voting on a resolution or ordinance which would authorize the Borough to provide paid medical insurance for the Mayor or Councilmembers and secondly, if adopted, whether the sitting Members of Council could take advantage of the paid medical insurance. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. S §407(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. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Confidential Advice, 94 -576 June 21, 1994 Page 2 As Council Member for A Borough, B 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 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. 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 Confidential Advice, 94 -576 June 21, 1994 Page 3 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. The Commission has determined if a particular statutory enactment prohibits an official from receiving a particular benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. Thus, in Means, Opinion 90- 007, the Commission held that Second Class Township Supervisors who work limited hours would not be precluded from receiving paid life insurance benefits under the Second Class Township Code on the theory that if a given pecuniary benefit is authorized in law, the receipt of such pecuniary benefit would not be private and would Confidential Advice, 94 -576 June 21, 1994 Page 4 not be contrary to Section 3(a) of the Ethics Law In the instant matter, the 1992 amendment to the Borough Code authorizes the Borough to provide paid medical insurance coverage for the Mayor, Council and their dependents. Based upon the statutory authorization in the Borough Code, B would not be prohibited from participating or voting in favor of an ordinance to provide paid medical insurance coverage to himself as a Council Member or to his dependents nor would the Ethics Law preclude B as a sitting member of Council from receiving the paid medical insurance. See Williamson, Advice 88 -523. Parenthetically, it should be noted in Means, supra that the Commission referenced the Preamble of the Ethics Law which recites that public office is a public trust and suggested that the better practice of the public officials would be to forego such benefits which would have to be paid from tax revenues. 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 or the Constitution of the Commonwealth of Pennsylvania. Conclusion: A Borough Council Member is a public official subject to provisions of the Ethics Law. Section 3(a) of the Ethics Law does not prohibit a Council Member from voting or accepting paid medical insurance for himself or his dependents when such paid medical insurance is provided by the Pennsylvania Borough Code. 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. Confidential Advice, 94 -576 June 21, 1994 Page 5 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). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. cerely, Vincent \) Dopko Chief Counsel