HomeMy WebLinkAbout98-552 ThomsonSally Thomson, Chairman
Pike County Board of Commissioners
Pike County Administration Building
506 Broad St. Milford, PA 18337
Dear Ms. Thomson:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 5, 1998
98 -552
Re: Conflict, Public Official /Employee, County, Commissioner, County Buildings,
District Magistrate's Office, Courtroom, Immediate Family, Spouse, Judge.
This responds to your letter of April 1, 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 county commissioner regarding two proposed county
buildings, one of which will be a district magistrate's office, Court of Common Pleas
courtroom and staff offices, when the spouse of the commissioner is a county judge.
Facts: As the Chairman of the Pike County Board of Commissioners
(Commissioners), you request an advisory of the State Ethics Commission. You are
also the wife of Pike County President Judge Harold A. Thomson, Jr.
The Commissioners are currently interviewing architects for the design of two
county buildings: a senior center, for which a grant was received, combined with an
administrative office complex for an Area Agency on Aging; and a second building to
house a district magistrate's office, Court of Common Pleas courtroom and necessary
staff offices to provide for arraignments, non -jury trials and other related business. You
state that both projects will be bid out to architects at the same time, hopefully as a
single package.
You ask to what degree, in your capacity as Chairman of the Board of
Commissioners as well as the wife of President Judge Thomson, Jr., you may
participate in the process of the two county building projects.
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 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.
Thomson, 98 -552
May 5, 1998
Page 2
As County Commissioner for Pike County, 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. that
no
In addition, Sections 3(b) and l em to ee the
anything of monetary v e in and no
person shall offer to a public officia / p Y of
public official /employee shall solicit or official a actio i ng or rr j u dgem nt value of t the ased c
the understanding that the vote,
official /employee would that the e has been or will be any transgression therreof but
of the law not to imply th
merely to provide a complete response to the question presented.
Section 3(j) of the Ethics Law provides as follows:
R
ivi i
- • .
,•n
(j) Where voting conflicts are not otherwise
addressed by the Constitution of Pennsylvania foblowiny
law, rule, regulation, order or ordinance, official or public
procedure shall be employed. Any public
bmployee e required who vote on c a a matter official duties
result in would a
b
Thomson, 98 -552
May 5, 1998
Page 3
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 applying the provision of Section 3(a) of the Ethics Law to the instant matter,
the Ethics Law would preclude you from using the authority of office to obtain a
private pecuniary benefit for yourself, a member of your immediate family which
includes your spouse, or a business with which you or a member of your immediate
family is associated. Based upon the factual assumptions that you or a member of your
immediate family have no financial interest in the architectural firm that will be
selected to handle the county building project or any of the other contracting firms or
businesses relative to the county building project, Section 3(a) of the Ethics Law would
not impose any prohibition or restrictions upon you as to the project.
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 County Commissioner for Pike County, you are a public official
as that term is defined in the Public Official and Employe Ethics Law, and hence you
are subject to the provisions of that law. Based upon the factual assumptions that you
or a member of your immediate family have no financial interest in the architectural
firm that will be selected to handle the county building project or any of the other
contracting firms or businesses relative to the county building project, Section 3(a) of
the Ethics Law would not impose any prohibition or restrictions upon you as a county
commissioner regarding two proposed county buildings, one of which will be a district
magistrate's office, Court of Common Pleas courtroom and staff offices, when your
spouse is a county judge. 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
Thomson, 98 -552
May 5, 1998
Page 4
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 1. 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,
Vincent J. Dopko
Chief Counsel