HomeMy WebLinkAbout97-604 ThomsonSally Thomson, Chairman
Pike County Commissioners
Pike County Administration Building
506 Broad Street
Milford, PA 18337
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 1, 1997
97 -604
Re: Conflict, Public Official /Employee, Chairman, County Commissioner, Board of
Elections, Spouse, Judge, Retention.
Dear Mrs. Thomson:
This responds to your letter of July 17, 1997 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 a County Commissioner who also serves on the County
Board of Elections where her spouse is a candidate for retention as President Judge
of the Judicial District.
Facts: As a Member and Chairman of the Pike County Commissioners and as a
Member of the Pike County Board of Elections, you request an advisory from the State
Ethics Commission. You were elected as Pike County Commissioner in 1991 and
1995. You have also served on the Board of Elections since that time except while
campaigning for re- election in 1995.
On November 4, 1997, your husband, the Honorable Harold J. Thomson, Jr.,
President Judge of the 60th Judicial District, will be a candidate on the Pike County
ballot for retention.
You seek an advisory as to whether it is permissible for you to serve on the
Board of Elections or if you should excuse yourself because of a conflict of interest.
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
Thomson, 97 -604
August 1, 1997
Page 2
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.
In each of your capacities as a Member and Chairman of the Pike County
Commissioners and as a Member of the Pike County Board of Elections, 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.
"Immediate family." A parent, spouse, child, brother
or sister.
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
Thomson, 97 -604
August 1, 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.
In each instance of a conflict, 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 voting 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. As your spouse, President Judge Thomson is a member of your
immediate family.
The powers and duties of the County Boards of Elections are set forth in the
Election Code at 25 P.S. §2642. The extensive duties of the Board include, inter alia,
investigating election frauds, irregularities, and violations of the Election Code;
receiving and determining the sufficiency of nomination petitions, certificates, and
papers of candidates; receiving the election returns, and canvassing and computing
same; and certifying the election results as provided by law. Participating as a
Member of the Board of Elections in performing such duties would constitute the use
of the authority of your office as to that election in which your husband is seeking
retention.
Moreover, it is clear that the success or failure of your spouse in seeking
retention would have a financial impact upon him.
Thomson, 97 -604
August 1, 1997
Page 4
Consequently, you are advised that in your capacity as a member of the Pike
County Board of Elections, you would have a conflict of interest in matters involving
your spouse's retention.
In each instance of a conflict of interest, you would be required to abstain and
to satisfy the disclosure requirements of Section 3(j) as set forth above.
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 or the Election Code.
Conclusion: In each of your capacities as a Member and Chairman of the Pike
County Commissioners and as a Member of the Pike County Board of Elections, you
are a public official subject to the provisions of the Ethics Law. You would have a
conflict of interest in your capacity as a Member of the Pike County Board of Elections
as to matters involving your spouse's retention. In each instance of a conflict of
interest, you would be required to abstain and to satisfy the disclosure requirements
of Section 3(j) as set forth above. 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.
e`ely,
Vincent . • opko
Chief Counsel