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HomeMy WebLinkAbout94-640 HookDear Mr. Hook: 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 6, 1994 Guy S. Hook Stewartstown Borough 15 North Main Street P.O. Box 415 Stewartstown, PA 17363 94 -640 Re: Conflict, Public Official /Employee, Borough Council Member, Fire Company Serving Borough, Use of Authority of Office, Business with which Associated, Officer of Fire Company. This responds to your letter of November 16, 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 borough council member with regard to official action involving or affecting the local fire company, where the council member is presently serving as a volunteer firefighter but may prospectively serve as an officer of the fire company. Facts: As an elected Borough Council Member for Stewartstown Borough you request an advisory from the State Ethics Commission. You serve as a volunteer with the local fire company. You have been approached regarding serving as an officer with the fire company and would like to know how this would affect your participation and voting as a Council Member. You note that you recently read that council members who are also serving in volunteer fire companies cannot participate /vote on matters concerning those fire companies. You pose the following the following specific inquiries: 1. What level of fire company "officer" does this pertain to? (i.e. president, vice - president, chief /asst. chief, ambulance captain or lieutenant, fire police captain, director, elected officers, appointed officers). Hook, Guy S., 94 -640 December 6, 1994 Page 2 2. Does the restriction on participating /voting apply just to financial matters or to ALL matters that pertain to the fire company? Based upon all of the above, you seek an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.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. As a Borough Council Member for Stewartstown Borough, 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 includes the public official or public Hook, Guy S., 94 -640 December 6, 1994 Page 3 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: 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 Hook, Guy S., 94 -640 December 6, 1994 Page 4 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 "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 Hook, Guy S., 94 -640 December 6, • 1994 Page 5 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. Furthermore, to the extent the private pecuniary benefit would apply to the same degree to all members of a class /subclass such as firefighters or officers of the fire company, the exception to the definition of "conflict" or "conflict of interest" would apply. 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 of which the public official /public employee or a member of his immediate family is a director, officer, owner, employee, or has a financial interest. Based upon the facts which you have submitted, it is impossible to determine whether this particular fire company is a part of the Borough's governmental body or a "business ". Among the most significant factors in making this determination is the degree to which the fire company is funded and controlled by the Borough, or alternatively raises its own funds and governs itself. Having set forth the above guiding principles the specific inquiries which you raised shall be addressed as thoroughly as is possible, given the factual constraints. With regard to your first specific inquiry, pursuant to the definition of "business with which he is associated" as set forth in the Ethics law and above, the status as an officer in a business, in and of itself, is sufficient to meet the definition. The definition does not distinguish among, or exclude, particular offices. With regard to your second specific inquiry, the restrictions of Section 3(a) pertaining to conflict of interest and the related requirements for abstention and disclosure as set forth in Section 3(j) are invoked in each instance of a conflict of interest. A conflict of interest is defined in the Ethics Law as the use of authority of public office /public employment or any confidential information received by being in such a position for a prohibited private pecuniary (financial) benefit. A private pecuniary benefit is a necessary element of conflict of interest under the Ethics Law, but such a private pecuniary benefit may not always be readily apparent. Any specific situations which are in doubt may be presented to this Commission for further advice. Hook, Guy S., 94 -640 December 6, 1994 Page 6 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. Conclusion: As a Borough Council Member for Stewartstown Borough, you are a public official subject to the provisions of the Ethics Law. Based upon the facts which have been submitted, it is impossible to determine whether the fire company which you serve is part of the Borough's governmental body or is a "business." If the fire company is part of the Borough's governmental body, regardless of your status as a firefighter or officer, you could only have a conflict of interest as to matters involving the fire company where there would be some private pecuniary benefit to yourself, a member of your immediate family, or a business with which you or a member of your immediate family is associated (other than the fire company). Furthermore, to the extent the private pecuniary benefit would apply to the same degree to all members of a class /subclass such as firefighters or officers of the fire company, the exception to the definition of "conflict" or "conflict of interest" would apply. If, on the other hand, the fire company is a "business," it would by definition be a business with which you would be associated if you were to serve as an officer of the fire company. Under this scenario, as an officer of the fire company, you would also have a conflict of interest as to matters which would result in a private pecuniary benefit to the fire company itself. 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 Hook, Guy S., 94 -640 December 6, 1994 Page 7 of this Advice pursuant to 51 Pa. Code 313.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by PAZ 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. incerely, Vincent . Dopko Chief Counsel