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Home My WebLink About97-564 PastoreMs. Ruth Pastore 734 St. Clair Avenue Clairton, PA 15025 Dear Ms. Pastore: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 6, 1997 97 -564 Re: Conflict, Public Official /Employee, City, Council Member, Insurance, Payment, Own Expense. This responds to your letter of March 31, 1997 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 Member of City Council from enrolling in the City's health insurance plan at her own expense. Facts: As a Member of the Clairton City Council, you request an advisory from the State Ethics Commission. You would like to enroll in the City of Clairton's hospitalization and other health insurance coverages at your own expense. The insurance coverage is obtained through the Employer- Teamsters Local 205 Welfare Fund. You state that you would pay to the City of Clairton all necessary hospitalization insurance premiums and fees through payroll deduction of your salary as a Council Member at the same time the City submits payment for such premiums to the Employer- Teamsters Local 205 Welfare Fund. You have submitted a letter sent to you by the City Solicitor, George S. Gobel, wherein he states his legal opinion that there is nothing inappropriate or improper in Council Members enrolling in the City's health insurances through the Employer - Teamsters Local 205 at their own expense. 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. Pastore, 97 -564 May 6, 1997 Page 2 As a Member of the Clairton City 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. 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. 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 ■ Pastore, 97 -564 May 6, 1997 Page 3 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. Under Section 3(a) of the Ethics Law, your enrolling in the City health insurance plan would be a use of authority of office. However, the question is whether your participation in the plan would constitute a private pecuniary benefit to yourself. Although the less costly premiums which group insurance programs offer could certainly constitute a private pecuniary benefit, there have been instances where the Commission has determined that a public official /public employee who was not entitled to governmentally -paid insurance could nevertheless participate in the governmental body's group plan at their own expense: Borough Solicitor, Dawson, Opinion 97 -003; Second Class Township Tax Collector, Kester, Opinion 90 -004; and Borough Tax Collector, Domalakes, Opinion 85 -010. In applying Section 39a) of the Ethics Law to the instant matter, as long as there is no provision in an applicable municipal statute or ordinance which prohibits such participation in health insurance plans, the Ethics Law would not prohibit you from participating in the City health insurance plan at your own expense. 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 Member of the Clairton City Council, you are a public official subject to the provisions of the Ethics Law. Subject to the qualification noted above, Section 3(a) of the Ethics Law would not prohibit you from enrolling at your own Pastore, 97 -564 May 6, 1997 Page 4 expense in the City health insurance plan. 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 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."Dopko Chief Counsel