HomeMy WebLinkAbout94-631 PetrusoDear Mr. Petruso:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 1, 1994
John D. Petruso, Esquire
Fuller, Kinnunen, Petruso, Gamble, Fabian & Hall
Attorneys at Law
373 Center Street
Meadville, PA 16335 94 -631
Re: Conflict, Public Official /Employee, Borough Council Member,
Fire Company Serving Borough, Use of Authority of Office,
Business With Which Associated, Volunteer Fire Department,
Firefighter, Fire Chief, Fire Police Captain, Officer of Fire
Company.
This responds to your letters of September 19, 1994, October
24, 1994 and October 28, 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 borough council
members who also serve as firefighters and /or officers in a fire
company which serves the borough with regard to matters concerning
the fire department such as budget matters, repairs and expansions
to the borough -owned building housing the fire department, and
appropriations for the fire department.
Facts: As Borough Solicitor for the Borough of Saegertown,
Crawford County, Pennsylvania, you request an advisory on behalf of
four members of Borough Council who also serve, in varying
capacities, on the Saegertown Volunteer Fire Department. You state
that the Saegertown Volunteer Fire Department is not an official
department of the Borough. It does, however, receive the
statutorily mandated assistance from the Borough including
Workmen's Compensation coverage and, you believe, any fire company
state funds that are restricted for distribution to the Firemen's
Relief Associations. The building where the volunteer fire
department is housed in Saegertown is owned by the Borough. The
Borough budget for the year 1994 made the following appropriations
on behalf of the fire department:
Petruso, John D., 94 -631
December 1, 1994
Page 2
Alarm $ 150.00
Training 600.00
Telephone service 500.00
Miscellaneous 100.00
Electric 1,200.00
Gas 2,200.00
Sewer 244.00
Building repair 1,000.00
Building electric 2,000.00
$7,994.00
In addition, the Borough also included in the budget a
donation to the volunteer fire department of $8,000.00. The total
budget for the Borough for the year was $186,755.00.
The Borough routinely provides repair services to the
volunteer fire department for maintaining the building.
Presently, there are four members of Council who are
affiliated with the volunteer fire department. One of these
individuals is also the Mayor. Of the four, one is the present
Chief of the fire department, another is the Fire Police Captain,
and the other two do not hold any offices at the present time.
However, one of the two non - officers was Fire Chief last year. At
least three of these four Council Members routinely respond to fire
calls and all regularly attend meetings of the fire department. It
is your understanding that none of these individuals are paid as
members of the Saegertown Volunteer Fire Department, nor do they
receive any benefits such as mileage.
The Council Member who also serves as Mayor has served eleven
years on Council, first as a Council Member and now as Mayor. The
other three volunteer firemen are Council Members with full voting
power and have served on Council for fifteen, five and one year
respectively. These individuals provide hundreds of volunteer
hours training, raising funds, and responding to emergencies for
the department.
Based upon the above facts, you seek advice concerning the
following issues:
May the Council Members who serve the volunteer fire
department participate in discussions and votes on matters that may
indirectly affect the volunteer fire department such as repairs to
the Borough -owned building where the fire department is housed,
appropriations to the fire department and purchase of additional
real estate earmarked for expansion of the fire department
building?
May such members of the volunteer fire department secure
Petruso, John D., 94 -631
December 1, 1994
Page 3
proposals for repairs to be performed on the building which is
owned by the Borough and used by the volunteer fire department?
May such members of the volunteer fire department participate
in discussion and voting upon specific matters that may come before
Council that affect the volunteer fire department including, but
not limited to, budget matters.
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. 5407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
In their respective capacities as Borough Council Members and
Mayor for the Borough of Saegertown in Crawford Country,
Pennsylvania, the four individuals on whose behalf you have
inquired are all public officials as that term is defined under the
Ethics Law, and hence each of these individuals 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
Petruso, John D., 94 -631
December 1, 1994
Page 4
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
partnership,
enterprise,
organization,
.11
Any corporation,
sole proprietorship, firm,
franchise, association,
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:
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
Petruso, John D., 94 -631
December 1, 1994
Page 5
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 above provisions of the Ethics Law to the
circumstances which you have submitted, pursuant to Section 3(a) of
the Ethics Law, a public official /public employee is prohibited
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, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
Depending upon the circumstances in a given case, a fire
company may be viewed as part of a governmental body such as a
borough, or as a private entity meeting the definition of
Petruso, John D., 94 -631
December 1, 1994
Page 6
"business" as set forth in the Ethics Law and above. If a fire
company is part of the governmental body in which the public
official /public employee in question serves, it may generally be
said that a private pecuniary benefit to the fire company alone
would not present a conflict of interest for the public official.
Only if there were additional circumstances, such as if the public
official /public employee or a member of his immediate family would
also derive a private pecuniary benefit, could there be a conflict
of interest. If, on the other hand, the fire company is a
"business," there is the potential for a conflict of interest
solely based upon a private pecuniary benefit to the fire company,
because the fire company is then an entity separate from the
governmental body. The issue is whether the fire company is a
"business with which [the public official /public employee] is
associated," as that term is defined in the Ethics Law. That
definition would include any business for which the public
official /public employee or a member of his immediate family is a
director, officer, owner, employee, or has a financial interest.
Among the most significant factors in determining the status
of a fire company is the degree to which the fire company is funded
and controlled by the governmental body, See, 53 P.S. §65704, or
alternatively raises its own funds and governs itself.
In this case, for the two individuals who do not hold officer
positions with the fire company, the status of the fire company is
irrelevant. Even if it were a "business," the fire company would
not be a business with which these individuals are associated as
that term is defined in the Ethics Law. A conflict of interest
under the Ethics Law would only arise for these two non - officers of
the fire company as to matters where they as individuals, member (s)
of their immediate families, or businesses with which they or
member(s) of their immediate families are associated (not the fire
company) would receive a private pecuniary benefit.
As for the other two individuals on whose behalf you have
inquired, the status of the fire company is significant. These two
individuals, serving as the Chief of the fire department and as the
Fire Police Captain are officers of the fire department, and
therefore the fire department could very well be a business with
which these individuals are associated within the definition set
forth in the Ethics Law.
Based upon the facts which you have submitted, it would appear
that although the Borough provides some financial and operational
support to the fire company, the fire company is not a department
of the Borough and is not controlled by the Borough. Under the
particular circumstances in this case, the Saegertown Volunteer
Fire Department would not be viewed as part of the Borough of
Saegertown. It would be viewed as a business with which its Chief
Petruso, John D., 94 -631
December 1, 1994
Page 7
and Fire Police Captain, who also serve on the Borough Council, are
associated.
Before addressing the specific issues which you have raised,
it is noted that to the extent any of these four members of Council
would receive a private pecuniary benefit from official action as
to the fire department's Workmen's Compensation insurance or relief
funds, the exceptions to the definition of "conflict of interest"
include official action "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 . . . a member of his immediate family . . .." 65 P.S.
§402. Conditioned upon the assumption that these individuals would
benefit from the fire department's Workmen's Compensation insurance
or official action as to relief funds to the same degree as the
other firefighters and /or officers, these individuals would not
have a conflict of interest as to such matters in that they would
be within the aforesaid exception to the definition of conflict of
interest.
As to other matters, however, conflicts of interest could
arise for these two Council Members who serve as Chief and Fire
Police Captain for the fire department. These matters would
include repairs to the Borough -owned building where the fire
department is housed, the purchase of additional real estate
earmarked for expansion to the fire department building, securing
a proposal for repairs to be performed on said building,
appropriations to the fire department, and budgetary matters
affecting the fire department. Thus, as to each of your three
specific inquiries, conflicts of interest would arise for the two
council members who serve as officers of the fire department in
each instance where a private pecuniary benefit would result for
the fire department. For example, to the extent that the Borough
maintains, repairs, and /or expands the building housing the fire
department, the fire department would receive a private pecuniary
benefit by not having to expend funds for these or alternative
facilities.
In each instance of a conflict of interest, a public
official /public employee is required to abstain from any
participation of any nature and to publicly disclose the nature of
the conflict, both orally at the public meeting and in a written
memorandum filed with the secretary to be placed with the minutes.
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.
Petruso, John D., 94 -631
December 1, 1994
Page 8
Conclusion: As Borough Council Members and as the Mayor for the
Borough of Saegertown in Crawford County, Pennsylvania, the four
individuals on whose behalf you have inquired are all public
officials subject to the provisions of the Ethics Law. Based upon
the facts which have been submitted, the Saegertown Volunteer Fire
Department would not be viewed as part of the Borough of
Saegertown, but would be a business with which the two members of
Council who serve as fire department officers are associated. The
fire company would not be deemed to be a business with which the
other two members of council are associated, in that they are
firefighters but not officers. Section 3(a) of the Ethics Law
would restrict all four individuals from official action whereby
they would receive a private pecuniary benefit individually or for
member(s) of their immediate families or for businesses with which
they or member(s) of their immediate families are associated. The
class /subclass exception to the definition of conflict of interest
would apply in instances where the private pecuniary benefit
derived would be to a class or subclass affecting these individuals
to the same degree as the other firefighters and /or officers. The
two Council Members who are officers of the fire department would
have conflicts of interest in matters which would result in a
private pecuniary benefit to the Saegertown Volunteer Fire
Department. In each instance of a conflict of interest, a public
official is required to abstain from any participation and to
publicly disclose the abstention and the reasons for same, both
orally and by filing a written memorandum to that effect with the
person recording the minutes. 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, United States
Petruso, John D., 94 -631
December 1, 1994
Page 9
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 J Dop
Chief Counsel
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