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HomeMy WebLinkAbout97-509 WebsterRobert L. Webster, Jr., Esquire Webster & Webster 51 East South Street Uniontown, PA 15401 Dear Mr. Webster: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 23, 1997 97 -509 Re: Conflict, Public Official /Employee, County, Commissioner, Voting, Settlement of Lawsuit, Campaign Contributions to Commissioner by Plaintiff in Lawsuit. This responds to your letter of December 20, 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 as to participation in a vote to settle a lawsuit involving the County where the plaintiff in the lawsuit has made contributions to the Commissioner's campaign. Facts: As the Assistant Fayette County Solicitor, and on behalf of Sean Cavanaugh (Cavanaugh), a Fayette County Commissioner who took office on January 1, 1996, you request an advisory. This matter concerns settlement of a lawsuit (Wolford Swimmer v. County of Fayette, No. 46 of 1989 G.D.) which arose out of an alleged breach of contract committed by two previous Commissioners in the late 1980's relative to the long -term lease of County -owned real estate to Swimmer. The other two Commissioners involved in the legal dispute no longer serve — one is deceased and the other is now retired. The Plaintiff in this lawsuit, Swimmer, made a financial contribution to Cavanaugh's election campaign for County Commissioner. Cavanaugh and fellow Commissioner Harry Albert are willing to vote in favor of settling the lawsuit for $ 15,000. However, the third Commission, Vincent Vicites, is opposed to settling the lawsuit for that amount. In order to settle the lawsuit, Cavanaugh's second vote in favor is necessary. Cavanaugh is, however, unwilling to vote if his vote would violate the Ethics Law given the fact that he received a campaign contribution from Swimmer in 1995. 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 Webster /Cavanaugh, 97 -509 January 23, 1997 Page 2 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 Fayette County, Sean Cavanaugh (Cavanaugh) 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 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. Webster /Cavanaugh, 97 -509 January 23, 1997 Page 3 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 Ethics Law to the question posed, the full Commission in Wolfgang, Opinion 89 -028 held that a candidate for township supervisor who received campaign contributions from developers would not per se have a conflict if the candidate were elected. However, since Wolfgang was a candidate and not a public official, the Commission decided the case under Sections 3(b) and 3(c) of the Ethics Law factually assuming that there were no improper understandings between Wolfgang and the developers. Therefore, expressly based upon the submitted facts which only reference the campaign contribution and no other financial relationship and based upon the assumption that no improper understandings exist in contradiction to Sections 3(b) and Webster /Cavanaucah, 97 -509 January 23, 1997 Page 4 3(c) of the Ethics Law, Cavanaugh would not have a conflict and could vote as to the settlement of the lawsuit. 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 Commissioner for Fayette County, Sean Cavanaugh (Cavanaugh) is a public official subject to the provisions of the Ethics Law. Based upon the qualifications noted above, a County Commissioner would not have a conflict in voting to settle a lawsuit involving the County where the plaintiff in the lawsuit made contributions to the Commissioner's campaign. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(1 1), 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 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, c it) Vincent is opk• Chief Counsel