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HomeMy WebLinkAbout98-531 RoadcapRoger Roadcap 37 Graeff St. Cressona, PA 17929 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 19, 1998 98 -531 Re: Conflict, Public Official /Employee, Borough Council Member, Employee, Sewer Authority, Cemetery Commission, Immediate Family, Spouse, Participation, Appointments /Reappointments. Dear Mr. Roadcap: This responds to your letter of February 13, 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 borough council member with regard to commenting and /or asking questions regarding appointments or reappointments to the borough sewer authority and /or the borough cemetery commission where that council member and his wife are both employed by the borough sewer authority and where the borough council member is also employed on a part-time basis by the cemetery commission. Facts: You were recently elected as one of seven members of the Borough Council of Cressona. You are employed on a full -time basis by the Cressona Borough Sewer Authority (Authority), which you note is a separate entity under the Municipality Authorities Act. Your wife is employed as the Cressona Borough Sewer Authority Agent. You are also employed part-time by the Cressona Cemetery Commission (Cemetery Commission). You and the Borough Solicitor have agreed that a conflict of interest would exist were you to vote or nominate a member of either the Authority or the Cemetery Commission. You have agreed not to participate in any nominations or votes for any members of these boards. You ask for an advisory on the issue of whether in your capacity as a Borough Council Member you may comment and /or ask questions regarding appointments or reappointments to either the Authority or the Cemetery Commission. 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 Roadcap, 98 -531 March 19, 1998 Page 2 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 Council Member for the Borough of Cressona, you are a public official as that term is defined in the Public Official and Employe Ethics Law ( "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 employee who in the discharge of his official duties would be required Roadcac, 98 -531 March 19, 1998 Page 3 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. Your spouse is a member of your immediate family. In your capacity as a Borough Council Member, you would have a conflict of interest in Authority matters and /or Cemetery Commission matters before Borough Council if such matters would have a financial impact upon you and /or your spouse. Specifically, you would have a conflict of interest with regard to appointing /reappointing Member(s) of the Cressona Borough Sewer Authority, because both you and your wife are employed by that Authority. You would have a conflict of interest with regard to appointing /reappointing Member(s) of the Cressona Cemetery Commission because you are employed by that Commission. See, Start/Leetsdale Boro gh, Advice No. 97 -527; 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. 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) as set forth above. You are advised that the use of authority of office is more than the mere mechanics of voting Roadcap, 98 -531 March 19, 1998 Page 4 and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. Thus, given that you would have a conflict of interest with regard to appointments or reappointments to the Cressona Borough Sewer Authority and /or the Cressona Cemetery Commission, your duty to abstain from such matters would include abstaining from commenting and /or asking questions as to such appointments or reappointments. 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 and /or the Municipality Authorities Act of 1945. Conclusion: As a Council Member for the Borough of Cressona, you are a public official subject to the provisions of the Ethics Law. You would have a conflict of interest with regard to appointing /reappointing Member(s) of the Cressona Borough Sewer Authority, because both you and your wife are employed by that Authority. You would have a conflict of interest with regard to appointing /reappointing Member(s) of the Cressona Cemetery Commission because you_are employed by that Commission. In each instance of a conflict of interest, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 3(j) as set forth above. The duty to abstain would include abstaining from commenting and /or asking questions as to such appointments /reappointments. 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