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HomeMy WebLinkAbout94-594-S GreenJames A. Green, Commissioner Office of the Commissioners County of Butler P.O. Box 1208 Butler, PA 16003 -1208 Dear Mr. This requested Green: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1994 94 -594 -S Re: Conflict, Public Official /Employee, County Commissioner, Member of County Retirement Board, Early Retirement Incentive Program, Participation by Public Official /Employee, Supplemental Advice. responds to your letter of August 30, 1994 in which you supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law would prohibit or restrict a County Commissioner who is a member of the county retirement board from voting and participating in preparing an early retirement incentive program for the county employees where he would qualify to take advantage of such an early retirement incentive but would choose not to participate in the early retirement plan. Facts: By letters of July 18, 1994 and July 22, 1994, you requested advice from the State Ethics Commission with regard to participating in adopting an early retirement incentive provision for members of the County employees' retirement system where you would qualify to take advantage of such an early retirement incentive and would benefit from same. On August 22, 1994, Advice of Counsel No. 94 -594 was issued which Advice is incorporated herein by reference. You now seek supplemental advice. The facts which you submitted with regard to your initial request for advice included the following. You are Chairman of the Butler County Board of Commissioners and also a Member of the County Retirement Board. New legislation, specifically Act 71 of 1994, would permit the Retirement Board to approve an early retirement incentive program for the Butler County Green, James A., 94 -594 -S September 26, 1994 Page 2 employees who qualify for retirement. 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 asked whether you would have a conflict of interest 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. Following an extensive analysis which shall not be repeated but which is incorporated herein . by reference, Advice of Counsel No. 94 -594 reached the following 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." Green, Advice of Counsel No. 94 -594 at 6. The Advice additionally noted that the propriety of your proposed conduct had only been addressed under the Ethics Law. Id. In your most recent letter of August 30, 1994, you state that you agree with the said Advice regarding your prior inquiry and that there is no challenge or appeal to the said Advice. However, you indicate that as a lay person you are making an assumption that if you personally do not choose to participate in the provisions of Green, James A., 94 -594 -S September 26, 1994 Page 3 Act 71 of 1994, that you may vote and participate in preparing an early retirement incentive program for the employees of Butler County. You state that you would, of course, make your intentions known at a public meeting -- both verbally and in writing -- that you would not participate in an early retirement plan. It is your belief that if you do not participate, you may vote for a plan. You ask for an advisory confirming your understanding. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §5407(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 Chairman of the Butler County Board of Commissioners and as a Member of the County 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. Sections 3(a), 3 (b) , 3(c), and 3(j) as well as the pertinent definitions found in Section 2 of the Ethics Law have been set forth and discussed fully in Advice of Counsel No. 94 -594 and will not be repeated herein, but are incorporated herein by reference. Your specific inquiry will now be addressed. Given your affirmative representations that you would not participate in an early retirement plan and that you would make these intentions known at a public meeting -- both verbally and in writing -- the Ethics Law would not preclude you from voting and participating in preparing an early retirement incentive program for the employees of Butler County. This is because under the facts and conditions which you have submitted, there would be no private pecuniary benefit to you resulting from your official action. Thus, you would not have a conflict of interest as that term is defined in Section 2 of the Ethics Law. This Supplemental Advice is conditioned upon the express assumption that your official action would not result in a private pecuniary benefit to any member of your immediate family or any business with which you or a member of your immediate family is associated. 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 Green, James A., 94 -594 -S September 26, 1994 Page 4 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. Given your affirmative representations that you would not participate in an early retirement plan, despite your qualification for same, and that you would make these intentions known at a public meeting -- both verbally and in writing -- the Ethics Law would not preclude you from voting and participating in preparing an early retirement incentive program for the employees of Butler County. This Supplemental Advice is conditioned upon the express assumption that your official action would not result in a private pecuniary benefit to any member of your immediate family or any business with which you or a member of your immediate family is associated. 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 513.2(h). The appeal may be received at the Commission by hand delivery, Milted 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. 17r erely, Vincent . Dopko Chief Counsel