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HomeMy WebLinkAbout96-609 RaderJeanne A. Rader 47 North Main Street Mercersburg, PA 17236 Dear Mrs. Rader: 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 25, 1996 96 -609 Re: Conflict, Public Official /Employee, Borough, Council Member, Sewer Authority Board Member, Immediate Family, Spouse, Rental Properties. This responds to your letter dated October 24, 1996 and your subsequent undated letter received October 28, 1996, by 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 who, in their respective public capacities, serve as a Borough Council Member and as a Member of the Borough Sewer Authority, and who in their private capacities, own several rental units that would be serviced by a new sewer plant that is presently being built for the Borough. Facts: As a Member of the Mercersburg Borough Council, you request an advisory from the State Ethics Commission. Your husband, who serves as a Member of the Mercersburg Sewer Authority, has joined in your request. Your husband began serving in his capacity as a Member of the Sewer Authority prior to your election as Councilperson. Your husband's term of office is due to expire on December 31, 1996, but he is interested in seeking a second five year term beginning in January, 1997. You state that the Sewer Authority does not, as of yet, function as an independent Authority but cooperates with Borough Council as an advisory arm of the Council. The Borough Council is building a new sewer plant for the Borough and the Sewer Authority is involved as the financier of the plant. You were advised by Thomas Finucane, your legal counsel, that there could be a conflict of interest if you were to continue serving as a Councilperson and your husband were to continue to serve on the Sewer Authority. Although Mr. Finucane stated that there was nothing illegal in your husband and yourself serving on separate governmental bodies, there could be the "appearance" of unethical or illegal action. Rader, 96 -609 November 25, 1996 Page 2 You state that there is no question of financial gain for either you or your husband because you are not contractors or possible suppliers of the sewer plant. You are, however, the owners of several rental units and are concerned with keeping sewer rates as low as possible for your potential renters, yourselves, and the citizens of Mercersburg equally. 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 Member of the Mercersburg 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. Likewise, as a Member of the Mercersburg Sewer Authority, your husband is a public official subject to the Ethics Law. This conclusion is based upon the following analysis. Although you have indicated that the Authority is presently functioning as an "advisory arm" of Council, and although members of purely advisory bodies may be excluded from the definition of public official, if they have no authority to expend public funds (beyond reimbursing personal expenses) or to otherwise exercise the power of the state or political subdivision, you have also indicated that the Sewer Authority is the "financier" for the new sewer plant that is being built, and so the exception would not apply. 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 Rader, 96 -609 November 25, 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. "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 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 Rader, 96 -609 November 25, 1996 Page 4 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 the Ethics Law quoted above to the instant matter, the Ethics Law does not prohibit or restrict members of the same family from seeking or holding public office. The restriction of Section 3(a) is that a public official may not use the authority of office or confidential information to which he has access by being in his public position 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. In this case it is clear that you and your husband, as spouses, are immediate family members as that term is defined under the Ethics Law. Accordingly, although there is no prohibition or restriction that would preclude you from serving as a Mercersburg Borough Council Member while your husband is a Member of the Mercersburg Sewer Authority, you would have a conflict of interest and could not participate in any matter that would result in a private pecuniary benefit to your husband. For example, if the Sewer Authority Members are paid, you could not participate in reappointing your husband to the Sewer Authority. In each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) of the Ethics Law set forth above. As for the fact that you and your husband own rental units that would be serviced by the new sewer plant, conditioned upon the assumption that you would be members of a class consisting of the general public or a subclass consisting of an industry, occupation or other group, and would be affected by any given action involving the sewer plant, sewer rates, and the like, to the same degree as all other members of the class or subclass, there is an exception in the definition of "conflict" or "conflict of interest" which would apply such that participation in your official capacities as to such matters would not constitute a conflict of interest. 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 Borough Code or the Municipality Authorities Act of 1945. Conclusion: As a Borough Council Member for Mercersburg Borough, you are a public official subject to the provisions of the Ethics Law. As a Member of the Mercersburg Sewer Authority, your husband is a public official subject to the Ethics Law. The Ethics Law would not prohibit or restrict you or your husband from holding your respective public offices merely because you are immediate family members. You would have a conflict of interest in matters that would result in a private pecuniary benefit to your husband. Pursuant to Section 3(a) of the Ethics Law, you could not participate in reappointing your husband to a compensated position as a Member of Rader, 96 -609 November 25, 1996 Page 5 the Mercersburg Sewer Authority. In each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) of the Ethics Law. As for the fact that you and your husband own rental units that would be serviced by the new sewer plant, conditioned upon the assumption that you would be members of a class consisting of the general public or a subclass consisting of an industry, occupation or other group, and would be affected by any given action involving the sewer plant, sewer rates, and the like, to the same degree as all other members of the class or subclass, there is an exception in the definition of "conflict" or "conflict of interest" which would apply such that participation in your official capacities as to such matters would not constitute a conflict of interest. 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 forma/ 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. cerely, incent Dopko Chief Counsel