Loading...
HomeMy WebLinkAbout98-613 VogtPatrick Vogt Brian Slusarick Tracy Reed Borough of Emporium Municipal Bldg., 421 N. Broad St. Emporium, PA 15834 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL November 20, 1998 98 -613 Re: Conflict; Public Official /Employee; Council Member; Borough; Purchase of Property; Business with which Associated. Dear Council Members: This responds to your letters of October 20, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon two borough council members who are employed by a business which is negotiating with the borough for the purchase of a parcel of property, and a third council member who is employed by a person who is the accountant for a business in which he also has a financial interest where that business is also negotiating for the purchase of the same property. Facts: Two businesses, GKN Sinter Metals ( "GKN ") and Embassy Powder Metals ( "Embassy "), are currently negotiating with the Borough of Emporium ( "Borough ") to purchase a "choice" piece of property, which both claim is necessary to the future of their businesses. Patrick Vogt, a Borough Council Member, is employed by GKN in an "exempt salary position" as a Buyer /Supervisor. Council Member Brian Slusarick is also employed by GKN in an "exempt salary position" as a Maintenance Foreman. Council Member Tracy Reed is employed as a secretary by the accountant for Embassy, which accountant also has a financial interest in Embassy. The Council Members request an advisory from the State Ethics Commission as to whether they may vote on the sale of the property to one of the aforementioned businesses. 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 FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Vogt /Slusarick /Reed, 98 -613 November 20, 1998 Page 2 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. Council Members for the Borough of Emporium are public officials as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "), and hence 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. "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. 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 Vogt /Slusarick /Reed, 98 -613 November 20, 1998 Page 3 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. The abstention requirement is not limited merely to voting, but extends to any use of authority of office. In Juliante, Order No. 809, the Commission recognized that the use of authority of office as defined in the Ethics Law includes, for example, discussing, conferring with others, and lobbying for a particular result. 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. Section 3(a) of the Ethics Law quoted above prohibits a public official /public employee 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. As to Section 3(a) of the Ethics Law, it is generally noted that a conflict of interest exists where a public official /public employee, in his official capacity, participates, reviews or passes upon a matter involving a business with which he is associated and /or private clients. 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), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). In applying Section 3(a) of the Ethics Law to the instant matter, both Vogt and Slusarick have conflicts. Any participation or voting by Vogt and Slusarick would be uses of authority of office. See, Juliante, supra. GKN would receive a private pecuniary benefit if it obtains the "choice" parcel of property. Since both Vogt Slusarick are employed by GKN, it is a business with which they are associated as that term is defined under the Ethics Law. Thus, Vogt and Slusarick would have conflicts and could not participate or vote on the issue of the purchase of the property, must abstain and observe the disclosure requirements of Section 3(j) above. As to Reed, she also has a conflict under the Ethics Law based upon the Commission's decision in Miller, supra, wherein it was held that a township zoning Vogt /Slusarick /Reed, 98 -613 November 20, 1998 Page 4 officer, who was privately employed by a firm, had a conflict as to matters before the township involving the firm or its clients. Reed is employed by an accountant whose client Embassy is seeking to purchase the same "choice" parcel of property from the Borough. In addition, Reed's employer, the accountant, has a financial interest in Embassy. Accordingly, Reed has a conflict and must not participate or vote, and must observe the disclosure requirements of Section 3(j) of the Ethics Law. 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: Council Members for the Borough of Emporium are public officials subject to the provisions of the Ethics Law. Two Borough Council Members who are employed by a business which is negotiating with the Borough for the sale of a parcel of property, and a third council member who is employed by a person who is the accountant for a business in which he also has a financial interest where that business is also negotiating for the purchase of the same property, have conflicts under Section 3(a) of the Ethics Law and therefore may not participate or vote on the matter and must observe the disclosure requirements of Section 3(j). 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. Vincent' Dopko Chief Counsel