HomeMy WebLinkAbout99-520 MeadeDr. Thomas Meade
425 Shaw Ave.
Clairton, PA 15025
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
March 10, 1999
99 -520
Re: Conflict; Public Official /Employee; Council Member; City; Health Insurance;
Payment at Own Expense.
Dear Dr. Meade:
This responds to your letter of January 31, 1999 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et sag., presents any prohibition or restrictions upon a city council
member as to enrolling in city- sponsored health insurance plans at his own expense.
Facts: You are a Member of City Council in the City of Clairton ( "City "), Allegheny
County. You would like to enroll in City- sponsored health insurance plans, which are
obtained through the Employer- Teamsters Local 205 Welfare Fund ( "Welfare Fund "). You
intend to pay all hospitalization insurance premiums and fees through payroll deductions
of your salary as a Council Member, which deductions would approximately coincide
with the City's payments to the Welfare Fund for such health insurance premiums.
You have sought the advice of City Solicitor George S. Gobel, who opined that
it would not be inappropriate or improper for you to enroll in the City's health insurance
coverages at your own expense. The Solicitor, however, suggested that you obtain an
opinion from the State Ethics Commission.
You therefore request an advisory from the State Ethics Commission as to
whether you may enroll, at your own expense, in City- sponsored health insurance
coverages.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (1 1). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us
Meade, 99 -520
March 10, 1999 .
Page 2
As a Council Member for the City of Clairton, you are a public official as that term
is defined in the Ethics Act, and hence you are subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. Definitions.
65 Pa.C.S. §1102.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
"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. The term 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.
In applying the above provisions of the Ethics Act to the instant matter, pursuant
to Section 1103(a) of the Ethics Act, 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.
Section 1103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
(j) Voting conflict. - -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
Meade, 99 -520
March 10, 1999
Page 3
Inc at 5.
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.
65 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1103(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 Commission has considered the issue of participation by public officials in
municipal health insurance group plans at their own expense. See, Domalakes, Opinion
85 -010; Keiter, Opinion 90 -004; Dawson, Opinion 97 -003. Although the Commission
has ruled that a public official may participate at his own expense in a municipal health
insurance plan, the Commission also determined that the public official cannot use the
authority of office in obtaining his own coverage. Thus, the public official could not
participate in any action of the municipal body to make such coverage available to
himself /herself. See, Dawson, supra:
Unlike the Tax Collectors in the Opinions cited above,
who would play no official role in the governmental body's
decision as to whether to allow them to participate in its
insurance coverage, a Borough Solicitor ordinarily would play
a role in advising Borough Council in such matters. Since it
would be your own participation in the insurance coverage
that would be at issue, you would have a clear conflict of
interest in matters involving your participation in the
Borough's health insurance coverage. You would therefore be
required to abstain fully from such matters and to satisfy the
disclosure requirements of Section 3(j) set forth above.
Conditioned upon your abstention as Borough Solicitor
and your satisfaction of the Section 3(j) disclosure
requirements as to matters involving your participation in the
Borough's health insurance coverage, if the Borough Council
were to authorize your participation in Manor Borough's
health insurance coverage at your own expense, such
participation would not transgress Section 3(a) of the Ethics
Law. Since the Borough Council would be making the
decision as to whether you could participate, without any
involvement by you as Solicitor, you would not be using the
authority of your office so that that particular element of a
Section 3(a) violation would be lacking.
Meade, 99 -520
March 10, 1999
Page 4
Therefore , in your case, as long as you in your capacity as a public official do not
use the authority of your office to provide for your own participation in the health plan,
as for example, where such action would be taken by Council with your abstention, then
you may participate at your own expense in the city health insurance plan.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve
an interpretation of the Ethics Act. Specifically not addressed herein is the applicability
of the respective municipal code.
Conclusion: As a Council Member for the City of Clairton, you are a public official
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. §1101 sgg. As long as you in your capacity as a public official do not use
the authority of your office to provide for your own participation in the health plan, them
you may participate at your own expense in the city health insurance plan. Lastly, the
propriety of the proposed conduct has only been addressed under the Ethics Act. ,
Pursuant to Section 1107(11), an 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, provided 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.
erely,
incent Dopko
Chief Counsel