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HomeMy WebLinkAbout98-555 SchorppEdward L. Schorpp, Esquire 127 W. High St. Carlisle, PA 17013 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 11, 1998 Re: Conflict, Public Official /Employee, Citizen Meetings, Donations from Businesses, Gift Certificates, Random Selection of Citizen as Recipient. Dear Mr. Schorpp: This responds to your letters of April 3 and April 9, 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 newly - elected official of a municipal governing body with regard to randomly soliciting gift certificates from members of the local business community to be given on a random basis to citizens who attend monthly meetings held by the elected official. Facts: As Solicitor for a municipal governing body, you seek an advisory from the State Ethics Commission on behalf of a newly - elected official. The aforementioned official has been holding monthly meetings for citizens in 'an effort to encourage the general public to take a greater interest in local government. At the meetings, the official hears any concerns, ideas or comments that the citizens may have. No other elected officials attend these meetings. Prior to each monthly meeting, the official randomly solicits gift certificates, which are blank as to a recipient, from members of the local business community. At each monthly meeting, the official randomly selects an attending citizen to receive one of the certificates and completes it with that individual's name. You state that the official has not, to date, solicited a gift certificate from any member of the business community currently having business dealings or other matters with the governing body of which the official is a member. However, you note that it is always possible that a gift certificate donor may, at some future date, have matters pending before the governing body. Finally, you note that the public official promises nothing to the donor(s) in return for the gift certificate(s). You ask for an advisory as to the propriety of the above within the parameters of the Ethics Law. 98 -555 Schoroo, 98 -555 May 11, 1998 Page 2 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. It is further initially noted that pursuant to Sections 7(10) and (1 1) of the Ethics Law, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. An elected official who serves on a municipal governing body is a "public official" subject to the provisions of the Public Official and Employe Ethics Law ( "Ethics 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. SchorAp, 98 -555 May 11, 1998 Page 3 "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 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 supe7isor. 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 Schorpo, 98 -555 May 11, 1998 Page 4 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. A financial impact upon a business client may also form the basis for a conflict of interest. See, Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92- 010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, affirmed, Snyder v. SEC, 686 A. 2d 843 (Pa. Commw. Ct. 1996), allocatur den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). Based upon the facts which you have submitted, the public official on whose behalf you have inquired would be permitted, within the parameters of the Ethics Law, to randomly solicit local businesses for donations of gift certificates for random distribution to citizens who attend citizen meetings with the public official, subject to the following conditions: 1) The public official would merely serve as a conduit for the distribution of the donated gift certificates to the citizens attending such meetings; 2) There would be no improper understandings which would transgress Sections 3(b) and /or 3(c); and 3) The following would be ineligible and would in fact not receive any such gift certificate(s): the public official himself, any member of his immediate family, any business with which he or a member of his immediate family is associated, and /or any client of such a business. Subject to the above conditions, the Ethics Law would not preclude the proposed activity by the public official on whose behalf you have inquired. 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 respective municipal code. Conclusion: An elected official who serves on a municipal governing body is a "public official" subject to the provisions of the Public Official and Employe Ethics Law ( "Ethics Law "). The public official on whose behalf you have inquired would be permitted, within the parameters of the Ethics Law, to randomly solicit local businesses for donations of gift certificates for random distribution to citizens who attend citizen meetings with the public official, subject to the following conditions: 1) the public official would merely serve as a conduit for the distribution of the donated gift certificates to the citizens attending such meetings; 2) there would be no improper understandings which would transgress Sections 3(b) and /or 3(c); and 3) the following would be ineligible and would in fact not receive any such gift certificate(s): the public official himself, any member of his immediate family, any business with which he or a member of his immediate family is associated, and /or any client of such ScherDe, 98 -555 May 11, 1998 Page 5 a business. 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 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. S' rely, Vincent J. Dop o Chief Counsel