Loading...
HomeMy WebLinkAbout96-525 MillerDear Mr. Miller: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1996 John R. Miller, Jr., Esquire Miller, Kistler, Campbell, Miller & Williams, Inc. 124 North Allegheny Street Bellefonte, PA 16823 96 -525 Re: Conflict, Public Official /Employee, School Board, Member, Second Class Township, Solicitor, University Amusement Tax, Impact Fee. This responds to your letter of February 12, 1996 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 school board member who is also the solicitor for a township within the school district boundaries. Facts: You are the Solicitor for the State College Area School District (School District) in Centre County and are requesting an advisory on behalf of Louis T. Glantz (Glantz) who is a member of the State College Area School Board (School Board). On January 19, 1996, Glantz was appointed Solicitor for the College Township Council. The School District is composed of six municipalities - the Townships of College, Harris, Halfmoon, Patton and Ferguson, and the Borough of State College. You state that it had been your opinion that there was no conflict of interest regarding a member of the School Board acting as Solicitor for a Township within the boundaries of the School District. However, certain circumstances have recently arisen which prompted this advisory request. College Township is currently considering adoption of an amusement tax which would tax admissions to the activities of Pennsylvania State University which is located within the Township. The University has an agreement with the School District, Centre County, State College Borough and College Township which provides for the University to pay impact fees to these municipalities, including the School District. An article recently appeared in the local newspaper regarding the amusement tax and made reference that such an action may adversely affect the agreement with the University, which would impact on the School District. The article specifically mentioned that Glantz, in addition to being the Township Solicitor, was also a member of the School Board. Miller /Glantz, 96 -525 March 5, 1996 Page 2 You indicate that Glantz is not handling the legal matters relating to the levying of the amusement tax by the township, rather special counsel has been 6ppointed to handle that matter. 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 School Board for the State College Area, Glantz is a public official as that term is defined under the Ethics Law, and hence he is 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. "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 anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon Miller/Glantz, 96 -525 March 5, 1996 Page 3 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 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. In applying the provisions of Section 3(a) of the Ethics Law to the instant matter, the fact that Glantz is a member of the School Board and Solicitor for College Township does not per se create a conflict. In order to establish a conflict, there would have to be a use of authority of office to obtain a private pecuniary benefit for Glantz himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. An example of such a conflict would be if Glantz advocated, participated and voted in awarding a contract to his law firm, Miller /Glantz, 96 -525 March 5, 1996 Page 4 the business with which he is associated. Contrariwise, the possibility that College Township, of which Glantz is Solicitor, may take action which could have a negative impact upon the School District of which Glantz is a board member would not constitute a conflict under the Ethics Law in that there is no showing under the proffered facts of any private pecuniary benefit inuring to either Glantz, an immediate family member or a business with which he or an immediate family member is associated. 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 School Board Member for the State College Area, Glantz is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, Glantz as Solicitor for a municipality would not have a conflict as to matters which will impact upon a school district of which he is a board member unless there is a use of authority of office to obtain a private pecuniary benefit for himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. 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 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. This letter is a public record and will be made available as such. 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 actuaily received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2M). 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 cerely, Vincent Chief Counsel