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HomeMy WebLinkAbout95-500 JonesSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 3, 1995 Robert E. Jones Commissioner County of Fayette Office of the County Commissioners Court House Uniontown, PA 15401 Re: Conflict, Public Official /Employee, County Commissioner, Member of County Retirement Board, Early Retirement Incentive Program, Participation By Public Official /Employee. Dear Mr. Jones: 95 -500 This responds to your letters of November 30, 1994 and December 8, 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 approving an early retirement incentive program where he would qualify to take advantage of such an early retirement incentive and would benefit from same. Facts: After noting prior Advice of Counsel No. 94 -594 issued August 22, 1994 to James Green, Chairman of the Butler County Board of Commissioners, and noting a prior telephone conversation with a staff member of the Commission, you request an advisory as to your own situation. You are one of three Fayette County Commissioners, and you are one of five members of the County Retirement Board. You state that you may have to vote on an issue of approving an early retirement incentive program in both of your capacities as a Commissioner and as a member of the Retirement Board. There is no early retirement incentive program in place at this time. Procedurally, the County Commissioners would vote first as to the proposed early retirement incentive program. The next step would be to have the five member Retirement Board approve the plan. Jones, Robert E., 95 -500 January 3, 1995 Page 2 Two of the three County Commissioners -- including you -- are eligible tea take advantage of the early retirement should it be approved. You state that both of you are showing possible consideration of early retirement. Three of the five members of the Retirement Board -- including you -- would be eligible to take advantage of the early retirement if it is approved. You state that all three of you show an interest in this early retirement program. You are interested in what avenues can be followed to alleviate possible conflicts, yet you state that you want to be able to make a decision on what is best for all. You state that as to each of these Boards, if the Members who would be eligible to participate in the plan, including you, exclude yourselves because of a conflict, the plan could not be adopted. You ask whether you may disclose and yet vote for the plan if otherwise it could not be passed. As to the County Commissioners, you ask whether, if the one Commissioner who would not qualify to participate in the early retirement incentive program would vote in favor of the program, you could disclose and vote in favor of the program. You further ask whether, if the one Commissioner who does not qualify to participate in the program votes against the program, the other two who would be eligible -- including yourself -- could make a disclosure and vote in favor of the program. Based upon all of the above, you request 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. It is further initially noted that your inquiry may only be addressed with regard to your own, proposed conduct. To the extent you have inquired regarding the propriety of the proposed conduct of others, your inquiry is a third party request which cannot and will not be addressed. As a County Commissioner for Fayette County and as a member of the Retirement Board for Fayette County, Pennsylvania, you are a public official as that term is defined under the Ethics Law, and Jones, Robert E., 95 -500 January 3, 1995 Page 3 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 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, Jones, Robert E., 95 -500 January 3, 1995 Page 4 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 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 Jones, Robert E., 95 -500 January 3, 1995 Page 5 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. The propriety of the proposed conduct will now be addressed 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: Jones, Robert E., 95 -500 January 3, 1995 Page 6 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 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. If you act in conformance with the above criteria, you may apply for and participate in the benefits associated with the early retirement incentive program. However, you ask whether you may vote as to the early retirement incentive program for Fayette County and participate in it in light of the number of public officials who, pursuant to the Ethics Law, may be abstaining from decisions as to the early retirement incentive program. You are advised that the following portion of Section 3(j) is dispositive of the issue: Section 3. Restricted activities (j) . 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 Jones, Robert E., 95 -500 January 3, 1995 Page 7 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. 65 P.S. §403(j). In applying the above language to the facts which you have presented, the County Board of Commissioners shall first be considered. Given that it is a three member board, if you would first abstain fully from any participation and meet the disclosure requirements of Section 3(j) and the result would either be a deadlock vote between the remaining two Commissioners or the casting of a vote by only one Commissioner if the other Commissioner was required to abstain under the Ethics Law as well, you would then be permitted to vote. This Advice is expressly conditioned upon your first abstaining and meeting the disclosures as required by the Ethics Law. As for the Fayette County Retirement Board, that Board consists of five members. Therefore, the provision dealing with three - member governing bodies which become deadlocked following an abstention would be inapplicable to that Board. However, if the number of members of the Retirement Board required to abstain from voting pursuant to the Ethics Law would make the legally required vote of approval unattainable, which in the case of a five member board would be three or more members abstaining under the Ethics Law, then again, conditioned upon the assumption that you would first fully abstain and make the required disclosures, you would be permitted to vote. 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 a Fayette County Commissioner and a member of the Retirement Board for Fayette County, you are a public official Jones, Robert E., 95 -500 January 3, 1995 Page 8 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 program which may be adopted for Members of the Fayette County employee retirement system, 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. If, in your capacity as a County Commissioner, you abstain fully and make the disclosure required by Section 3(j) of the Ethics Law as to the early retirement incentive program, and the result is either that the remaining two Commissioners deadlock or there is only one Commissioner to vote because the other Commissioner also abstains pursuant to the Ethics Law, then you may subsequently vote. If, in your capacity as a member of the Fayette County Retirement Board, you first fully abstain and make the required disclosures pursuant to Section 3(j) of the Ethics Law, and the result is that the Board is unable to take any action because three or more members of the Board required to abstain from voting under the provisions of the Ethics Law makes the majority or other legally required vote of approval unattainable, then you may subsequently vote. 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 Jones, Robert E., 95 -500 January 3, 1995 Page 9 of this Advice pursuant to 51 Pa. Code 513.2(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. i cerely, Vincent Chief Counsel