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HomeMy WebLinkAbout97-612 WagnerRichard F. Wagner Treasurer of Adams County 111 -117 Baltimore Street Gettysburg, PA 17325 -2390 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 30, 1997 97 -612 Re: Conflict; Public Official /Employee; County; Treasurer; Salary Board Member; Chairman, County Republican Committee. Dear Mr. Wagner: This responds to your letter of September 4, 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 Treasurer who is also a Member of the County Salary Board and Chairman of the County Republican Committee as to his participation in setting the salary of a County employee who may be directly related to an elected Republican municipal, county, state or federal office holder. Facts: As the Treasurer of Adams County and as a Member of the Adams County Salary Board, you request an advisory from the State Ethics Commission. Pursuant to the County Code, the Adams County Salary Board determines the establishment of employee positions and the related salaries of those positions. In addition to serving as the County Treasurer and as a Member of the County Salary Board, you are the Chairman of the Adams County Republican Committee. You ask whether you would have a conflict of interest with regard to setting the salary of a County employee who may be directly related to an elected Republican municipal, county, state or federal office holder. Specifically, you ask whether you would be prohibited from voting on the salary of a County employee who is the wife of a Republican State Representative. 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 Wagner, 97 -612 September 30, 1997 Page 2 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Treasurer of Adams County and as a Member of the Adams County Salary Board, 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. 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: Wagner, 97 -612 September 30, 1997 Page 3 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. 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. In acting to set the salary for a County employee, you clearly would be a public official using the authority of your public office. Furthermore, there would clearly be a private pecuniary benefit flowing to such County employee. However, a conflict of interest under Section 3(a) of the Ethics Law would only exist for you if in so acting, a private pecuniary benefit would result for you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Wagner, .97 -612 September 30, 1997 Page 4 In considering the specific example which you provided as to voting on the salary of a County employee who is the wife of a Republican State Representative, your status as Chairman of the Adams County Republican Committee would not be sufficient, in and of itself, to establish the requisite element of a prohibited private pecuniary benefit for a violation of Section 3(a) of the Ethics Law. Rather, a violation of Section 3(a) of the Ethics Law may only be found where a public official /public employee uses the authority of office or confidential information obtained by being in that position 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. In any instance of a conflict of interest, you would be required to abstain from participation and to fully 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. Conclusion: As Treasurer of Adams County and as a Member of the Adams County Salary Board, you are a public official subject to the provisions of the Ethics Law. With regard to your participation in setting the salary of County employee(s) who may be directly related to elected Republican municipal, county, state or federal office holder(s), your status as Chairman of the Adams County Republican Committee would not be sufficient, in and of itself, to establish the element of a prohibited private pecuniary benefit for a violation of Section 3(a) of the Ethics Law. Rather, a conflict of interest under Section 3(a) of the Ethics Law may only be found where a public official /public employee uses the authority of office or confidential information obtained by being in that position 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. 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 1. The appeal may be received at the Commission by hand Wagner, 97 -612 September 30, 1997 Page 5 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. incerely, te:v_stJel - i) it Vincent J. Dopko Chief Counsel