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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