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HomeMy WebLinkAbout98-523 MorleySteven A. Morley, Esquire Benjamin Franklin House, Ste. 206 834 Chestnut St. Philadelphia, PA 19107 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -161.0 ADVICE OF COUNSEL March 10, 1998 98 -523 Re: Conflict, Public Official /Employee, - Borough Council Member, President, Immediate Family, Spouse, Appointment, Joint Municipal Authority. Dear Mr. Morley: This responds to your letter of February 2, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a member and president of a borough council with regard to the appointment of her husband to a joint municipal authority, in which capacity he would receive compensation. Facts: You seek an advisory from the State Ethics Commission on behalf of Mrs. Mary Rita Merlino and her husband, Mr. F. Joseph Merlino. Since January 5, 1998, Mrs. Merlino has served as President of Borough Council for the Borough of Lansdowne (Borough). The Borough is one of several municipalities which participate in and constitute the Darby Creek Joint Authority (Authority), a municipal Authority that oversees the administration of certain aspects of the sewer systems of the participating municipalities. The Borough Council appoints one member of the Authority, who is then eligible to receive a salary of $600 per year. That seat is currently vacant. It has been proposed that Mr. Merlino be appointed to the position. You ask whether Mr. Merlino may be appointed to the Authority if Mrs. Merlino: 1) abstains from voting on the nomination of Mr. Merlino to the Authority; and 2) publicly announces and discloses, prior to the vote being taken, the nature of her interest in the appointment of Mr. Merlino as a public record, by filing a written memorandum with the person responsible for recording the minutes of the meeting at which the vote is taken. It is parenthetically noted that although your letter of inquiry references such memorandum as an attachment, no such attachment was included with your letter. However, an advisory may be issued to you on the basis of the contents of the letter itself. Morley, 98 -523 March 10, 1998 Page 2 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. As a Member and President of Borough Council for the Borough of Lansdowne, Mrs. Mary Rita Merlino is a public official subject to the Public Official and Employe Ethics Law ( "Ethics Law "). Likewise, should Mr. F. Joseph Merlino be appointed to serve on the Darby Creek Joint Authority, he too would be a public official subject to the Ethics 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, Morley, 98 -523 March 10, 1998 Page 3 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. Mrs. Merlino's spouse is a member of her immediate family. Since the position on the Authority is a compensated position, Mrs. Merlino would have a conflict of interest with regard to the appointment of her spouse to serve on the Authority. The fact that Mrs. Merlino would have a conflict of interest in the matter would not preclude Mr. Merlino from being appointed to serve on the Authority. However, as would be the case in any instance of a conflict of interest, Mrs. Merlino 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 Borough Code. Conclusion: As a Member and President of Borough Council for the Borough of Lansdowne, Mrs. Mary Rita Merlino is a public official subject to the Public Official and Employe Ethics Law ( "Ethics Law "). Likewise, should Mrs. Merlino's husband, F. Morley, 98 -523 March 10, 1998 Page 4 Joseph Merlino, be appointed to serve on the Darby Creek Joint Authority (Authority), he too would be a public official subject to the Ethics Law. Mrs. Merlino would have a conflict of interest with regard to the appointment of her spouse to serve on the Authority. The fact that Mrs. Merlino would have a conflict of interest in the matter would not preclude Mr. Merlino from being appointed to serve on the Authority. However, as would be the case in any instance of a conflict of interest, Mrs. Merlino would be required to abstain from participation and to fully 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 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. Vincent '' Dopko Chief Counsel