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HomeMy WebLinkAbout95-508 LoprestiJames A. Lopresti 908 Marion Street New Eagle, PA 15067 Dear Mr. Lopresti: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 27, 1995 95 -508 Re: Simultaneous Service, Borough Councilmember and Municipal Authority Board Member, Spouse as Borough Clerk. This responds to your letter of December 29, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a borough councilman from also serving or being employed as a municipal authority board member and from participating in matters involving his spouse as borough clerk Facts: On the advice of the New Eagle Borough Solicitor, you are writing to seek clarification on your voting privileges as a New Eagle Borough Councilmember. On December 12, 1994, you were appointed to fill a vacancy on the Borough Council. In addition, you serve as Chairman of the Municipal Authority of the Borough of New Eagle, an Authority as to which its members receive no compensation. Your Solicitor has opined that you are allowed to fill both positions. After noting that your wife is the Borough Clerk, which is a compensated position for New Eagle Borough, you request information that will help you understand your voting rights as a Member of Council and the Authority. Discussion: As a Municipal Authority Board Member and Councilmember for New Eagle Borough, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that Lopresti, James A., 95 -508 January 27, 1995 Page 2 constitutes a conflict of interest. The following terms are defined under the Ethics Law: 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. 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 any thing of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve both as a public official /employee and as Borough Councilmember. Basically, the Ethics Law does not state that it is inherently incompatible for a public official/ employee to serve or be employed as Borough Councilmember. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be inherently adverse. Smith Opinion, 89 -010. In the situation Lopresti, James A., 95 -508 January 27, 1995 Page 3 outlined above, you would not be serving entities with interests which are inherently adverse to each other. Turning to the question of conflict of interest, 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. Should a situation arise where the use of authority of public office /employment or confidential information received by holding the above public positions could result in a prohibited private pecuniary benefit, a conflict of interest would arise. In each instance of a conflict of interest, you would be required to fully abstain and to publicly announce and disclose the abstention and the reasons for same in a written memorandum filed with the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Having noted that there would be no prohibition under the Ethics Law for you serving as Borough Councilman and as Member of the Borough Municipal Authority, for which you receive no compensation, an issue does arise regarding your spouse's employment as a Borough Clerk. As to matters involving the financial interests of your spouse, such as salary, raise, benefits, etc., you would have a conflict as a Borough Councilman and would have to recuse yourself from such matters and observe the disclosure requirements of Section 3(j), infra. 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 Lopresti, James A., 95 -508 January 27, 1995 Page 4 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. Lastly, 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. Conclusion: As a Municipal Authority Board Member and Councilmember for New Eagle Borough Municipal Authority, you are a "public official" subject to the provisions of the Ethics Law. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Borough Councilman and Municipal Authority Board Member, subject to the restrictions, conditions and qualifications set forth above. You would have a conflict under Section 3(a) of the Ethics Law regarding matters involving the financial interests of your spouse as Borough Clerk; in such cases you would have to recuse yourself and observe the disclosure requirements of Section 3(j) of the Ethics Law as noted above. Lastly, the propriety of the proposed course of 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. Lopresti, James A., 95 -508 January 27, 1995 Page 5 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 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 7. Dopko Chief Counsel