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Home My WebLink About98-550 SchoonoverWilliam Schoonover Elkland Borough 105 Parkhurst St. Elkland, PA 16920 Re: Dear Mr. Schoonover: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 21, 1998 98 -550 Conflict; Public Official /Employee; Immediate Family; Borough; Council Member; Son -in -Law; Temporary Part-time Police Officer; Police Contract. This responds to your letter of March 25, 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 councilman with regard to negotiating and voting on a police contract where his son -in -law serves as a temporary part-time police officer in the borough under a separate contract. Facts: You are a Member of the Elkland Borough Council. Your son -in -law is employed as a temporary part-time police officer in Elkland Borough (Borough). His salary is stipulated under a separate contract with the Borough, rather than in the police contract, which is currently being negotiated by a Council committee of which you are a member. A citizen has questioned whether you as a Council Member have a conflict of interest as to your son -in -law's employment. You ask for an advisory of the State Ethics Commission as to whether you may participate in negotiations and vote on the Borough police contract or any other issues pertaining to the police department. You also inquire under what circumstances, if any, there would be a conflict of interest in your situation. 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. Schoonover, 98 -550 April 21, 1998 Page 2 As a Member of the Elkland Borough Council, 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. 65 P.S. §403(a). The following terms that pertain to Section 3(a) are defined in the Ethics Law as follows: 65 P.S. §402. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 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 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 Schoonover, 98 -550 April 21, 1998 Page 3 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 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since your son -in -law is not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not prohibit you from participating in negotiations and voting on the police contract. Baker, Opinion 89 -016. Further, your son -in -law's salary as a temporary part-time police officer is under a separate contract. You have asked in what circumstances you would have a conflict. Although a son -in -law would not be within the definition of "immediate family" set forth above, the State Ethics Commission has, in one instance, found a violation of Section 3(a) where the public official used the authority of office to create a new employment position and to appoint his son -in -law to same. The Commission found that the son -in- law's salary increase resulted in a direct private pecuniary benefit to the public official's daughter — who was a member of his immediate family — through the deposit of such monies in a joint account where they were used to satisfy joint obligations for which the daughter was legally liable. Pulice, Order No. 1035 (presently on appeal to the Commonwealth Court of Pennsylvania at Docket No. 0875 C.D. 1997). Lastly, 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. Conclusion: As a Member of the Elkland Borough Council, you are a public official subject to the provisions of the Ethics Law. Subject to the qualifications noted Schoonover, 98 -550 April 21, 1998 Page 4 above, Section 3(a) of the Ethics Law would not restrict you from participating in negotiations and voting on a police contract because your son -in -law is not a member of your immediate family as that term is defined under the Ethics Law and is under a separate contract as a temporary part-time police officer. 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. cerely, Vincen Dopko Chief Counsel