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Home My WebLink About95-563 DavidsonDorothy E. Davidson Walter J. Davidson, Jr. 105 W. Highland Avenue Langhorne, PA 19047 Re: Conflict, Public Official /Employee, Spouse, Secretary/ Treasurer, Mayor, Borough. Dear Mr. and Mrs. Davidson: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 12, 1995 95 -563 This responds to your letters of February 28, March 7, and May 2, 1995, and phone call of May 3, 1995, 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 spouses when one is employed as borough secretary /treasurer and the other serves as mayor or borough councilmember. Facts: You are employed as secretary /treasurer of Langhorne Manor Borough. You state you do not have the authority to issue checks under your signature alone; two signatures are required and you are one of three people authorized to sign the checks. You also state you have no managerial responsibilities; you more or less work on your own, and in conjunction with the council president. Your husband, Walter Davidson, is considering running for the office of mayor or councilmember of the borough. You state that Mr. Davidson would abstain from participating in any matter pertaining to your position that would require him to vote. You add that, in the ten years the previous mayor served, he never had to vote to break a tie. Both you and your husband seek advice from the Commission under the Ethics Law concerning your employment with the borough and your husband's contemplated public service. 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 Dorothy E. Davidson, 95 -563 Walter J. Davidson, Jr. May 12, 1995 Page 2 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. 5S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As secretary /treasurer for Langhorne Manor Borough, you are not a public employee as that term is defined under the Ethics Law, and hence you are not subject to the provisions of that law. This determination is expressly conditioned on you having no managerial responsibilities and no authorization to issue borough checks under your signature alone. As mayor or councilmember for Langhorne Manor Borough, Mr. Davidson would be a public official as that term is defined under the Ethics Law, and hence he would be 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. Dorothy E. Davidson, 95 -563 Walter J. Davidson, Jr. May 12, 1995 Page 3 "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. "Immediate family." A parent, spouse, child, brother or sister. 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 Dorothy E. Davidson, 95 -563 Walter J. Davidson, Jr. May 12, 1995 Page 4 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. As a mayor or councilmember, Mr. Davidson would have to abstain from discussions and voting on any matter in which he, an immediate family member, or a business with which he or an immediate family member is associated could obtain a private pecuniary benefit. As the spouse of a mayor or councilmember, you would be an immediate family member as defined by the Ethics Law. Therefore, Mr. Davidson, as a mayor or a councilmember, would have to abstain from participating in deliberations on matters pertaining to a pecuniary benefit involving his spouse such as salary, benefits, work performance, employment status, etc. 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 respective municipal code. Conclusion: As the secretary /treasurer for Langhorne Manor Borough, you are not a public employee subject to the provisions of the Ethics Law. This determination is expressly conditioned on you having no managerial responsibilities and no authority to issue borough checks under your signature alone. As the mayor or a councilmember for Langhorne Manor Borough, Mr. Davidson would be a public official subject to the provisions of the Ethics Law. Mr. Davidson, as mayor or councilmember, would have to abstain from participating in deliberations on matters pertaining to his spouse's private pecuniary benefit. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Dorothy E. Davidson, 95 -563 Walter J. Davidson, Jr. May 12, 1995 Page 5 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 thirty (30) 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 FAS transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. i cerely, Vincent •' Dopko Chief Counsel