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HomeMy WebLinkAbout95-519 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 1, 1995 95 -519 Re: Conflict, Public Official /Employee, Borough, Councilman, Lost Wages, Private Employment, Involuntary Court Appearance. This responds to your letter of January 19, 1995, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon borough council members from being reimbursed by the borough as to lost income from private employment which occurred as a result of the involuntary appearances by the council members in a court case. Facts: On behalf of three Council Members from the Borough of A, B, you request an advisory concerning the loss of personal income from non - municipal private employment involuntarily suffered by the three Members of Council in complying with an Order of the Court of Common Pleas as to the case of C. Although the Court Order directed all seven Members of Council to appear, only the above three Council Members have suffered losses and income from their non - municipal private employment. The employers of these three Council Members have refused to pay the Council Members for their time off from work. After noting that the personal income losses ranged in amounts from approximately $95.00 to $240.00, you ask whether Borough Council may under the Ethics Law reimburse these three Members of Council for the loss of personal income as to their private employment. As per the legal requirements for these three individuals to perform the duties of their office, they have carried out these duties in asserting a defense on behalf of the best interests of the Borough and residents in the above cited case. If the Borough did not defend this action, the Borough would have been ordered to allow a private developer to connect fourteen residential dwelling units to the Borough operated sewer plant despite a DER ban on new connections. The Borough Council defended the actions citing the Confidential Advice, 95 -519 March 1, 1995 Page 2 illegality of the relief requested by the developer in order to avoid the risk of contempt sanctions by both the Common Pleas Court and DER. After an evidentiary hearing was held before the Court, a lengthy settlement conference was held by the Court with Counsels for the developer, the Borough and another township which was a co- defendant. At the settlement conference, the Borough's Counsel restated the Borough's position that it could not allow connections in light of the DER ban and, in that regard, certain correspondence from DER was submitted to support the Borough position which was offered as a defense. At that conference, a settlement was considered whereby DER would be given a thirty day notice for permission to intervene in the lawsuit. Counsel for Borough was of the opinion during that conference that the failure of DER to intervene in the action would not prevent DER from commencing litigation against the Borough or Borough Authority as to knowingly disregarding the ban for new connections. Despite the concerns of Borough Counsel regarding the acceptability of certain terms of the proposed settlement, the developer specifically rejected an idea floated by Counsel for the Borough that DER approval for the new connections be expressly acquired. The Court directed Borough Counsel to consider the terms of the settlement, and if Council would not settle on the proposed terms, then Council would have to appear at a reconvened subsequent hearing. Thereafter, Borough Council convened an executive session and, after review, concluded that settlement was impossible without formal DER approval as to any new connections. Shortly thereafter, Borough's Counsel received correspondence from DER which confirmed the correctness of the position taken by the Borough as to its defense, namely, that relief from connections must come from DER after it would have a meaningful opportunity to review facts and circumstances and that DER would defer granting relief until certain remedial construction would alleviate a significant environmental concern of DER. On the same date of receiving the concurrence of DER, Borough Counsel advised Borough Council Members to appear in Court. At the time the above three Members revealed a personal hardship upon their personal finances to satisfy an Order of Court. The option available to the above three Council Members would be to disregard the Court Order mandating their appearance in order to satisfy their personal needs. Non - appearance would subject the Borough as party to the lawsuit to the risk of civil contempt proceedings and the expenditure of public monies to satisfy such sanctions as well as violating the Council Members' duty of fidelity under the Borough Code thereby exposing themselves to surcharge and possible fine under the Borough Code and compromising their position of public trust in order to maintain their individual interest in Confidential Advice, 95 -519 March 1, 1995 Page 3 their personal financial security. After referencing the Preamble to the Ethics Law you believe that the above three Council Members in seeking compensation for lost employment would not be obtaining a financial gain because the personal financial loss occurred by virtue of their holding public office. You state that the faith and confidence in government would be sustained because the Council Members strove to carry out their duties of fidelity and loyalty for the best interests of the Borough. You suggest that the failure to reimburse would penalize these Council Members who bring their knowledge and concerns of ordinary citizens and provide valuable input in Borough Council deliberations. After referencing subparagraph B of the Preamble to the Ethics Law, that persons should not be discouraged from maintaining their contacts with their community through their occupations and professions, you state that the local public office is a heavy one which should not be made heavier by placing the risk of financial loss on conscientiousness civil minded persons. You believe that any conflict may be eliminated by full disclosure under the Sunshine Law, full written disclosure in a resolution of Borough Council authorizing reimbursement, recusal of affected Members from voting on the resolution and the adoption or rejection of the resolution as drafted by the Borough Solicitor. You state that the Members of Borough Council believe that they have authorization to reimburse the above three individuals under the Borough Code. As a result of the Court ordered appearance, the three members of Council lost the following personal employment: D. 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 Council Members for A, the three individuals are public officials as that term is defined under the Ethics Law, and hence they are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Confidential Advice, 95 -519 March 1, 1995 Page 4 (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. 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. In applying the provision of Section 3 (a) of the Ethics Law to the instant matter, although it is clear that these three individuals were performing their duties as Borough Council Members in responding to the subpoena for a mandated Court appearance as to litigation affecting a matter of the Borough sewer system, it is equally true that the law requires that an individual, whether he is a public official or a citizen, to comply with subpoenas issued by the Court. The law further limits the individual subpoenaed to a fee plus mileage under the Pennsylvania statutes. The foregoing is all that is allowed in law. The Commission has held that the receipt by a public official /employee of compensation or money which is not authorized Confidential Advice, 95 -519 March 1, 1995 Page 5 in law is considered to be a financial gain other than compensation provided for by law or a private pecuniary benefit. See Hessinger, Order 931. Thus, a public official /employee who receives money or compensation by virtue of public office would have a conflict under Section 3(a) of the Ethics Law unless such financial gain or pecuniary benefit is specifically authorized in law. In this case, there is no provision in the Borough Code which would authorize the reimbursement for lost wages and private employment for performing Borough related duties. Therefore, since there is no authorization in law to receive such reimbursement, aside from the witness fee and mileage allowed as to subpoenaed witnesses, you are advised that the three members under Section 3(a) of the Ethics Law may not receive such reimbursement under the Ethics Law. The precise issue that you have raised has been addressed in Confidential Opinion, 94 -003, wherein a municipal authority board member sought to receive a reimbursement for lost wages in private employment due to performing work for the municipal authority. The Commission in concluding that such reimbursement for lost wages was contrary to Section 3(a) of the Ethics Law stated: Id. at 5. When individuals accept these type of positions, they do so knowing the demands of the office and the limitations of the salary. Although the above Opinion of the Commission was appealed to Commonwealth Court, it was dismissed in the case of Suehr v. SEC, filed in Pennsylvania Commonwealth Court at 1450 C.D. 1994 on December 12, 1994, allocatur pending in the Pennsylvania Supreme Court at 23 W.D. Allocatur Docket 95. 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 Council Members, the three individuals are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law prohibits the receipt by Borough Council Members of reimbursement for the loss of wages from private employment resulting from the required appearance by the Council Members in Court as to litigation concerning the Borough sewer system. 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 Confidential Advice, 95 -519 March 1, 1995 Page 6 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 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. .ncerely, Vincent . Dop o Chief Counsel