HomeMy WebLinkAbout95-637 MalinchokJohn Malinchok
350 West Arch Street
Frackville, PA 17931
Dear Mr. Malinchok:
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 27, 1995
95 -637
Re: Conflict, Public Official /Employee, Borough Councilmember,
Municipal Authority, Insurance agent.
This responds to your letter of December 4, 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 a borough
councilmember from voting on a resolution to reduce the size of the
municipal authority where the Councilmember's father is a member of
the authority.
Facts: You are a member of the Frackville Borough Council
(Council), appointed approximately 18 months ago. Your father,
Paul Malinchok, is a member of the Frackville Area Municipal
Authority (Authority). You are also an insurance agent for
Nationwide Insurance Company who is the carrier of property and
liability coverage for the Authority. This contract was awarded a
few years ago when their prior coverage was cancelled. Your father
abstained on all matters relating to this insurance contract with
the Authority.
The Authority has a resolution pending to reduce the number of
its members from 7 to 5. The number was increased from 5 to 7 when
construction of a treatment plant was started. Now that
construction of that plant is complete, Council wants to reduce the
number of members to 5.
Malinchok, 95 -637
December 27, 1995
Page 2
On November 20, 1995, the Council approved Resolution 5. You
abstained from this vote because of your uncertainty regarding a
conflict. The resolution is now on the agenda for the December 18,
1995 meeting for ratification or nullification and you inquire as
to whether you should vote on this issue.
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 member of the Frackville Borough Council, 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
employee, a member of his immediate family or
Malinchok, 95 -637
December 27, 1995
Page 3
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.
"Immediate family." A parent, spouse,
child, brother or sister.
"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
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
Malinchok, 95 -637
December 27, 1995
Page 4
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.
The specific question you pose seems to only relate to the
issue of whether you should vote on a resolution which would reduce
the Authority Board from 7 to 5 members. In addressing the one
issue raised, the answer under the Ethics Law depends upon the
impact of the Resolution upon the status of your father as an
Authority Board member. If the Resolution would not affect the
term of your father on the Authority so that there would be no
consequent effect on the compensation he receives as a Board
member, you may vote on the Resolution. Contrariwise, if the
Resolution would affect the term /compensation of your father on the
Authority Board, you would have a conflict, could not vote, and
must observe the disclosure requirement of Section 3(j) above.
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 a member of the Frackville Borough Council, you are
a public official subject to the provisions of the Ethics Law.
Under Section 3(a) of the Ethics Law, you would have a conflict as
to voting or participating on a Resolution which would lower the
number of Board members on the Frackville Municipal Authority of
which your father is a member only if your action would affect the
term or compensation of your father as an Authority Board member.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
Malinchok, 95 -637
December 27, 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
§13.2(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 thirty (30) days
may result in the dismissal of the appeal.
erely,
cent . Dopko
Chief Counsel