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