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HomeMy WebLinkAbout96-607 FosterJonathan P. Foster, Esquire Foster & Hartley 320 South Main Street PO Box 278 Athens, PA 18810 Dear Mr. Foster: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 22, 1996 96 -607 Re: Conflict; Public Official /Employee; County Commissioner; Reimbursement for Mileage, Meals and Lodging; Government Business /Private or Political Pursuits; Multi- purpose Trips. This responds to your letter of October 21, 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 County Commissioner regarding the reimbursement for mileage, meals and lodging expenses incurred as to County business and /or as to multi - purpose trips mixing County business with private or political pursuits. Facts: As the Solicitor for Bradford County, you have been authorized by Tina Pickett (Pickett) to request an advisory on her behalf. Pickett is a County Commissioner who took office in January, 1996. She has been required to travel to various places to attend functions as a County Commissioner and has not submitted a voucher for reimbursement. Prior to requesting reimbursement for mileage, meals and lodging expenses, Pickett would like clarification as to what expenses she may charge to the County. You state that the County has a policy of reimbursing elected and appointed County officials 24Q per mile with the Courthouse or one's home as the base point for calculation of mileage, whichever location is closer to the destination. The Commissioners also reimburse for actual lodging expense and meals up to $36 per day. Your specific inquiries are as follows: During the course of the year, Pickett has been requested by various officials to attend meetings, banquets, parades, and other events in her capacity as County Foster /Pickett, 96 -607 November 22, 1996 Page 2 Commissioner. You ask whether these are allowable expenses if the Commissioner receives a direct invitation to attend or is in attendance in his /her official capacity. You ask whether such expenses are reimbursable if a Commissioner, who was a member of the Chamber of Commerce or a service organization such as the Rotary Club prior to taking office, now attends as a Commissioner. You also inquire as to reimbursement for travel expenses when the Commissioner would, for example, be required to travel from Towanda to Philadelphia on County business, which would be reimbursable, but would alter their travel plans to include a trip in the same general direction but out of the way by more than 100 miles to attend to personal matters. Specifically, you ask whether the entire trip, or only the additional miles for the personal trip, would be ineligible for reimbursement. Pickett also received an invitation to attend an Arlen Specter Day in Washington, D.C. and attended that in conjunction with a trip to visit the County's United States Congressman. The agenda for the meeting was established by an unpaid consultant from the County who was formerly a Commissioner for the United States Office of Government Procurement. This unpaid consultant was well know by the Congressmen, various agencies, and offices in Washington, D.C. and served as a guide for the Commissioners. You ask whether it would be appropriate to reimburse this volunteer for his mileage and expenses that he advanced on Pickett's behalf. The trip consisted of traveling from Towanda, PA to York, PA to stay overnight. The next day Pickett traveled to Washington, D.C. to attend Arlen Specter Day and discuss County projects with his staff and other Pennsylvania representatives in attendance. Pickett stayed overnight in Washington and met the Congressman and his staff the next day. On her return trip, Pickett attended a meeting in Reading, PA on County business. You have submitted copies of the invitation, the list of bi- partisan speakers and subjects, and the reservation information for the Citizens for Arlen Specter Day, together with a letter from Congressman McDade dated September 16, 1996 which reflects that discussions were held in the spring between the Congressman and the Bradford County Commissioners on Bradford County projects. The aforesaid documents are incorporated herein by reference. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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 Commissioner for Bradford County, Pennsylvania, Pickett is a public official as that term is defined under the Ethics Law, and hence she is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Foster /Pickett, 96 -607 November 22, 1996 Page 3 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 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 Foster /Pickett, 96 -607 November 22, 1996 Page 4 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 above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Although you appear to be seeking a ruling through this advisory request as to specific examples, this advisory shall be limited to providing general guidance. As to any given expense, there could be a multitude of factors which could influence whether the particular expense would be allowable. In its advisory capacity, the Commission does not function as a fact - finder. It would take an investigation, which the State Ethics Commission does not conduct in the advisory context, to conclusively determine the allowability of the particular expenses about which you inquire. The allowability of a particular expense would initially be subject to the County Code and any pertinent policies of Bradford County itself. The submission and receipt of payment for unauthorized expenses would result in a private pecuniary benefit not allowable under Section 3(a) of the Ethics Law. If an expense is legitimate and allowable, the fact that the Commissioner may in the past have attended the function in a different capacity would not nullify the legitimacy of expenses for attending it now as a County Commissioner. Finally, as for multi - purpose trips where legitimate County business is transacted, to the extent any personal matters, political matters, or other non - County Foster /Pickett, 96 -607 November 22, 1996 Page 5 matters are pursued, all expenses for such non - governmental purposes must be paid by the individual and not by the County. Thus, for example, if a County Commissioner traveled to Washington, D.C. on legitimate County business and while there, took care of personal business which did not result in any additional expenses, the fact that personal business took place would not undermine the legitimacy of the expenses incurred on behalf of the County and no financial reimbursement by the public official would be required. On the other hand, if a County Commissioner was on legitimate County business and took a side trip for personal purposes which cost, for example, an additional $ 100, the County Commissioner would be required to pay that portion of the expenses not attributable to government business, which, in the example above, would be $100. See, Huff, Opinion 84 -015 (Full Commission held that County Commissioner could not use County - provided car for non - County matters without reimbursing the County). This Advice is expressly conditioned upon the assumption that the County business in question is legitimate and is not a contrived excuse to enable the diversion to the County of what would otherwise be private expenses. This is not to imply that there has been or will be such a transgression but merely to provide a complete response to the question presented. 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 County Code. Conclusion: As a Commissioner for Bradford County, Pennsylvania, Tina Pickett is a public official subject to the provisions of the Ethics Law. The submission and receipt of payment for unauthorized expenses would result in a private pecuniary benefit not allowable under Section 3(a) of the Ethics Law. If an expense is legitimate and authorized, the fact that the Commissioner may in the past have attended the function in a different capacity would not nullify the legitimacy of the expense as a County Commissioner. For multi - purpose trips where legitimate County business is transacted, to the extent any personal matters, political matters, or other non - County matters are pursued, that portion of the expenses attributable to such non- governmental purposes must be paid by the individual and not by the County. 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. Foster /Pickett, 96 -607 November 22, 1996 Page 6 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. Sincerely, Vincent J. Dopko Chief Counsel )cs