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HomeMy WebLinkAbout97-528 HenryDale Henry 457 North Second Street Sunbury, PA 17801 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 20, 1997 97 -528 Re: Simultaneous Service; Municipal Authority Foreman; Assistant Fire Chief; Candidate, City Council. Dear Mr. Henry: This responds to your letter of January 18, 1997, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a Sunbury Municipal Authority Foreman who also serves as Assistant Fire Chief for the Sunbury Fire Department from holding office as a Sunbury City Council Member. Facts: You are a resident of Sunbury, Pennsylvania and are employed by the Sunbury Municipal Authority (Authority) as a foreman in the Solid Waste Department. Additionally, you serve as an Assistant Fire Chief for the Sunbury Fire Department with a possible appointment as a Chief beginning in the year 2000 -2001. You are also interested in running for office as a Sunbury City Council Member in the near future. You seek an advisory as to whether a conflict of interest would exist for you under the Ethics Law as to holding office as a Sunbury City Council Member while continuing to hold the aforesaid positions with the Authority and Fire Department. Together with your request for an advisory, you have submitted documents, incorporated herein by reference, which include Sunbury Ordinance No. 456 and a letter dated December 16, 1996 from Theresa Nichols, City Clerk, that collectively reflect that the Sunbury Municipal Authority was organized under the Municipality Authorities Act of 1945 and that its Board is appointed by the Sunbury City Council. As to the Fire Department, you have provided the following information through telephone conversations with Commission staff. There are seven fire companies that serve the City of Sunbury. Some time ago, the seven companies formed a Fire Department. The City gives each Fire Company Henry, 97 -528 February 20, 1997 Page 2 a monthly payment ranging from approximately $400 to $475, which, per your understanding, may be used as the Fire Company sees fit. The City also gives yearly allowances for purchasing fire hoses, gear, radios, and the like. The Fire Companies own their trucks, and the City owns the fire hoses. The City has no say in the selection of officers in the Fire Companies: the officers are selected by the fire companies themselves. An Assistant Fire Chief is selected every two years on a rotational basis, with each Department having a turn. Those who are appointed eventually have the automatic ability to serve as the Fire Chief. The City pays Assistant Fire Chiefs $45 per month, which you have characterized as a gas allotment. You state that there is no withholding taken from these payments. The Fire Chief, to the best of your knowledge, is paid an amount between $1,500 to $1,800. You were not certain as to whether the City withheld taxes from these payments. Finally, it is noted that the City of Sunbury is a third class city. 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. If elected to the position of City Council Member for the City of Sunbury, you would be a "public official" as that term is defined in the Ethics Law and hence you would be subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1 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 under the Ethics Law: 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 Henry, 97 -528 February 20, 1997 Page 3 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. 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 judgment of the public official /employee would be influenced thereby. 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 Henry, 97 -528 February 20, 1997 Page 4 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 voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. The question of incompatibility of positions shall first be addressed. The following incompatibility provisions are pertinent to your request: §12. Councilmen ineligible to city offices in choice of councils No member of council of any city shall be eligible to any office, employment or agency directly chosen by councils, or either branch of them, during the term for which he shall have been elected to councils. §13. Councilmen not to hold offices in choice of councils No member of said councils shall hereafter hold any office or employment in the choice of said councils during the term for which he shall have been elected. §14. Councilmen ineligible to city or county offices Members of councils shall not hereafter hold any city or county offices in the choice of the people while serving as a member of said councils. 65 P.S. §§12-14. With regard to your employment with the Municipal Authority, an Authority that has been created pursuant to the Municipality Authorities Act of 1945 is not a part of the municipal government, but rather is an agency of the Commonwealth. Thus, conditioned upon the assumption that your employment with the Authority is subject to the Authority Board rather than City Council, your service as a Sunbury City Council Member would not appear to be inherently incompatible with your employment with the Sunbury Municipal Authority. As for any potential incompatibility caused by your service as Assistant Fire Chief of the Sunbury Fire Department, the facts which you have submitted indicate that Assistant Fire Chiefs — who ultimately automatically become the Fire Chief — are appointed by the Fire Companies, not City Council. Thus, there would not appear to Henry, 97 -528 February 20, 1997 Page 5 be an incompatibility as to the positions of Sunbury City Council Member and Assistant Fire Chief or Fire Chief of the Sunbury Fire Department. Turning to the question of conflict of interest, 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. With respect to the Authority, you would have a conflict of interest in Authority matters coming before City Council if such matters would have a financial impact upon you. You would specifically have a conflict of interest with regard to appointing Authority Member(s) because the Authority Members would, in effect, be your employers. See, Summerville, Advice No. 95 -509; Mutschler, Advice No. 93 -613. In analogous situations, the Commission has noted that official action where such a circular relationship exists presents a conflict of interest. See, Bassi, Opinion No. 86- 007-R; Woodrinq, Opinion No. 90 -001. With regard to the Fire Department, depending upon the circumstances in a given case, a fire company /department may be viewed as part of a governmental body, such as a city, or as a private entity meeting the definition of "business" as set forth in the Ethics Law and above. One of the most significant factors in making such a determination is the degree to which the fire company /department is funded and controlled by the City or alternatively raises its own funds and governs itself. Although the facts which you have submitted as to the fire companies /Fire Department are limited, based upon those facts, it would appear that the Sunbury Fire Department is not a part of the City's governmental body, but rather, is a "business." Furthermore, since you are an officer, it is a "business with which you are associated." As an officer of the Fire Department, you would have a conflict of interest as to matters which would result in a private pecuniary benefit to the fire companies /Fire Department. A conflict of interest would also exist for you where you, or a member of your immediate family would derive a private pecuniary benefit, except where the economic impact would be de minimis or would apply to the same degree to all members of a class /subclass such as firefighters or officers of the fire company. The fact that conflicts of interest may arise for you would not preclude you from holding office as a Sunbury City Council Member. However, in each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 3(j). Lastly, 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. Henry 97 -528 February 20, 1997 Page 6 Conclusion: If elected to the position of City Council Member for the City of Sunbury, you would be a "public official" subject to the provisions of the Ethics Law. You may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Sunbury City Council Member, Sunbury Municipal Authority Foreman, and Assistant Fire Chief or Fire Chief for the Sunbury Fire Department subject to the restrictions, conditions and qualifications set forth above. You would have a conflict of interest with regard to Municipal Authority matters that would have a financial impact upon you such as appointing Members to the Board of the Sunbury Municipal Authority. Under the limited facts which have been submitted, the Sunbury Fire Department would appear to be a "business" and not part of the City's government. Given your status as an officer, the fire companies /Fire Department would be considered a business with which you are associated. As an officer of the Fire Department, you would have a conflict of interest as to matters which would result in a private pecuniary benefit to the fire companies /Fire Department. You would also have a conflict in matters where there would be a private pecuniary benefit to you, a member of your immediate family, or any other business with which you are associated, except where the economic impact would be de minimis or the official action would apply to the same degree to all members of a class /subclass such as firefighters or officers of the fire company. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 3(j). Lastly, the propriety of the proposed course of 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 J. Chief Coun