HomeMy WebLinkAbout96-509 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 6, 1996
96 -509
Re: Conflict, Public Official /Employee, County Board of
Assessment, Tax Exemption Status, School Board, Hospital,
Employee.
This responds to your letters of January 11 and January 25,
1996 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 members of a school
board from voting on the tax exemption status for a hospital
situated within the school district when those school board members
are also employees of the hospital.
Facts: You represent a school district and request advice
regarding a potential voting conflict of interest. Specifically,
the County Board of Assessment has withdrawn the real estate tax
exemption status from all hospitals located within the county.
Litigation is presently pending to determine whether the hospital
properties in whole or in part should be taxable or exempt. The
School District has intervened in the litigation with regard to one
hospital located within the school district. There are four
directors on the School Board who are also employees of the subject
hospital. All four members hold responsible positions at the
hospital although they do very considerably as to administrative
responsibility. It is your understanding that these positions are
not involved in the "business" aspect of the hospital but rather in
patient treatment and research. At least one of the directors is
not strictly a hospital employee in that he performs services on a
voluntary basis without compensation.
Confidential Advice of Counsel 96 -50.9
February 6, 1996
Page 2
It is anticipated that issues may come before the School Board
requiring formal action by vote of the directors. You seek
guidance as to whether the affected directors must abstain from
voting on such matters. You assert that no director in your view
would use public office in violation of the Ethics Law and that no
director has any direct personal or pecuniary interest in such
votes. However, due to the potential significance of the issue,
you believe that prudence requires an advisory.
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 Members of the School Board, the four directors are public
officials as that term is defined under the Ethics Law, and hence
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
Confidential Advice of Counsel 96 -509
February 6, 1996
Page 3
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.
"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.
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
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