HomeMy WebLinkAbout98-619 ConfidentialSTATE 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
December 2, 1998
98 -619
Re: Conflict; Public Official /Employee; City Council; Vacancy; Four -year Member;
Two -year Member; Appointment.
This responds to your letter of November 5, 1998 by which you requested
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents any
prohibition or restrictions upon the appointment of a sitting two -year member of a city
council to a vacant four -year position on council.
Facts: You are the Solicitor for the City of A, a third class, Home Rule Charter
City.
Due to the death of a Council Member, a four -year position has become vacant
on City Council. Section C3 -7 of the Home Rule Charter states that "when a vacancy
is created in the Council, said vacancy shall be filled by a majority vote of the
remaining members of Council."
You have been authorized by a Member of the City Council to request a
confidential advisory from the State Ethics Commission as to whether the vacant four -
year position may be filled by a presently sitting two -year Member of Council. You
state that it is hoped that the vacancy can be filled at the November 16, 1998 Council
meeting.
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.
It is further initially noted that, pursuant to Sections 7(10) and 7(1 1) of the
Ethics Law, 65 P.S. 55407(10), (11), 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. To
FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us
Confidential, 98 -619
December 2, 1998
Page 2
the extent you have inquired as to conduct which has already occurred, such past
conduct may not be addressed in the context of an advisory opinion. However, to the
extent you have inquired as to future conduct, your inquiry may, and shall be
addressed.
As a Member of the A City Council, the individual in question is a public official
as that term is defined in the Public Official and Employee Ethics Law ( "Ethics Law "),
and hence he is 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.
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
Confidential, 98 -619
December 2, 1998
Page 3
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 instant matter,
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.
Although Section 3(a) of the Ethics Law would not prohibit the Council Member
who holds the two -year term from being appointed to the four -year term, the Council
Member could not use the authority of office to participate in the process as to his
own appointment. You are further advised that the use of authority of office is more
than the mere mechanics of voting and encompasses all of the tasks needed to
perform the functions of a given position. See, Juliante, Order No. 809. Use of
authority of office includes, for example, discussing, conferring with others, and
lobbying for a particular result. Hence, the Council Member would have a conflict as
to his own appointment, could not participate and must observe the disclosure
requirements of Section 3(j) noted above.
In Lewis, Order No. 876, the State Ethics Commission held, inter alia, that a
member of a township council violated Section 3(a) of the Ethics Law when he cast the
deciding vote in a vote of 3 -2 to appoint himself to the compensated position of
Executive /Mayor. Lewis thereafter requested reconsideration which was denied. Lewis,
Order No. 876 -R. Lewis appealed. In affirming the Commission's denial of
reconsideration, Commonwealth Court ruled, inter alia that the State Ethics Commission
did not err in finding a violation of Section 3(a) by Lewis when he cast the deciding vote
to appoint himself to a compensated position. Lewis v. State Ethics Commission,
Memorandum Opinion, No. 1282 C.D. 1993 (Pa. Commw. Ct. June 22, 1994). In so
holding, Commonwealth Court cited as support for its decision, Koslow v. State Ethics
Commission, 540 A.2d 1374 (Pa. Commw. Ct. 1988), allocatur den., 520 Pa. 609, 553
A.2d 971 (1988).
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 Home Rule Charter.
Confidential, 98 -619
December 2, 1998
Page 4
Conclusion: As a Member of the A City Council, the individual in question is a
public official subject to the provisions of the Ethics Law. Although Section 3(a) of the
Ethics Law would not prohibit the Council Member with a two -year term from being
appointed to fill a Council vacancy for a four -year term, the Council Member would
have a conflict as to his own appointment, could not participate and must observe the
disclosure requirements of Section 3(j) of the Ethics Law. 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.
rely,
cent Dop o
Chief Counsel