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HomeMy WebLinkAbout94-594 GreenSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 22, 1994 James A. Green, Chairman Butler County Board of Commissioners P.O. Box 1208 Butler, PA 16003 -1208 Re: Conflict, Public Official /Employee, County Commissioner, Member of County Retirement Board, Early Retirement Incentive Program, Participation by Public Official /Employee. Dear Mr. Green: 94 -594 This responds to your letters of July 18, 1994 and July 22, 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 county commissioner who is a member of the county retirement board with regard to adopting an early retirement incentive provision for members of the county employees' retirement system where he would qualify to take advantage of such an early retirement incentive and would benefit from same. Facts: As Chairman of the Butler County Board of Commissioners and as a Member of the County Retirement Board, you request advice from the State Ethics Commission. New legislation, specifically Act 71 of 1994, would permit the Retirement Board to approve an early retirement incentive program for the Butler County employees who qualify for retirement. You have submitted a copy of Act 71 of 1994 which is incorporated herein by reference. It is noted that this legislation sets minimum eligibility standards for such an early retirement provision, but otherwise allows significant latitude to county commissioners /county councils and retirement boards in establishing the specific requirements for taking advantage of the early retirement provision. Two of the Members of the Retirement Board, including yourself, qualify to take advantage of the provisions of the new legislation. You ask whether you would have a conflict of interest Green, James A.,94 -594 August 22, 1994 Page 2 and would be required to abstain from participating as to such an early retirement provision authorized by Act 71, in your capacity as a Member of the Retirement Board who would benefit by taking advantage of such an early retirement provision. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 6S407(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. The advisory is limited in scope to addressing only the question(s) asked. As Chairman of the Butler County Board of Commissioners and as a Member of the Retirement Board for Butler County, Pennsylvania, 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 Green, James A.,94 -594 August 22, 1994 Page 3 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. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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 Green, James A.,94 -594 August 22, 1994 Page 4 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. The State Ethics Commission must observe the stated purpose of the Ethics Law which is to strengthen the faith and confidence of people in their government by assuring the public that the financial interests of the holders of or candidates for public office do not present a conflict with the public trust. It is initially noted that Section 3(f) of the Ethics Law which pertains to contracts between a public official /public employee and his governmental body would not apply to your inquiry given that the above definition of "contract" specifically excludes agreements or arrangements for retirement from current public service. Green, James A.,94 -594 August 22, 1994 Page 5 We will now address the propriety of the proposed conduct under Section 3(a) of the Ethics Law. A recognized concern arises where a public program, funded with public monies and administered through a public agency, political subdivision, or governmental body is available to and is controlled by public officials or employees of that agency or governmental body. Public concern and criticism may arise if a public official or public employee who serves a governmental body receives benefits under a program of this nature. It is clear that the Ethics Law, and in particular Section 3(a), was primarily designed to restrict the activity of a public official or employee from using the authority of office for private pecuniary benefit. However, as a general rule, the Ethics Law was not enacted nor should it be interpreted to preclude public officials or employees from participating in programs which might otherwise be available to them. Wolff, Opinion 89 -030; Woodrina, Opinion 90 -001. In order to insure that a public official or employee is not in a conflict when he seeks to participate in a program such as an early retirement incentive program, he must observe the following: 1. play no role in establishing the terms and conditions for the early retirement provision; 2. abstain from voting and other official action as to the resolution for an early retirement provision and as to the early retirement provision itself, while publicly disclosing the reason for his abstention as required by Section 3(j) of the Ethics Law set forth above; 3. play no role in the process of selecting and reviewing applicants for early retirement under the early retirement incentive program; 4. use no confidential information acquired during the holding of public office to apply for participation in the early retirement incentive program; and 5. have no involvement with the administration of the program. Through application of the above criteria, the State Ethics Commission has sought to eliminate the possibility that a public official /employee who is seeking to participate in such a program would be in a position to insure that the program benefits would be available for his own benefit. Thus, a public official or public Green, James A.,94 -594 August 22, 1994 Page 6 employee in such a situation should refrain from participating in making decisions or recommendations about the program and regarding distribution of the limited funds which might be available as a result of such a program. Expressly conditioned upon the assumption that you act in conformance with the above criteria, you may apply for and participate in the benefits associated with the early retirement incentive program. 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 County Code or the County Pension Law. Conclusion: As Chairman of the Butler County Board of Commissioners and as a Member of the Retirement Board for Butler County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from applying for early retirement under an early retirement incentive provision which may be adopted for Members of the Butler County Employees' Retirement System pursuant to Act 71 of 1994, provided you play no role in establishing the terms and conditions of the early retirement provision; abstain from voting and other official action as to the resolution for an early retirement provision and as to the early retirement provision itself, while publicly disclosing the reason for your abstention as required by Section 3(j) of the Ethics Law set forth above; play no role in the process of selecting and reviewing applicants for early retirement under the early retirement incentive program; use no confidential information acquired during the holding of public office to apply for participation in the early retirement incentive program; and finally have no involvement with the administration of the program. 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 Green, James A.,94 -594 August 22, 1994 Page 7 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 513.2(h1) . The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission. (71.7- 787 -0806) . Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Sincerely, 1 Vincent J. Dopko Chief Counsel