HomeMy WebLinkAbout99-539 EichelbergerSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
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ADVICE OF COUNSEL
April 9, 1999
Gary Eichelberger
West Shore Council of Governments 99-539
230 Sporting Hill Road
Mechanicsburg, PA 17055 -3097
Re: Conflict; Public Official /Public Employee; Council Member; Borough of
Mechanicsburg; Private Employment or Business; Executive Director; West
Shore Council of Governments.
Dear Mr. Eichelberger:
This responds to your letter of March 16, 1999, by which you requested advice
from the State Ethics Commission.
Issue: Whether a borough council member is prohibited or restricted by the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et sea., from
working with, being employed by or associated with a council of governments (COG)
of which the municipality is a member.
Facts: You serve as a Council Member for the Borough of Mechanicsburg
( "Borough "). For three years, you have served as the Borough's delegate to the Board
of the West Shore Council of Governments ( "WSCG ").
On March 16, 1999, you were appointed as the Executive Director of WSCG,
an hourly compensated position requiring approximately 20 hours of work per week.
You also serve as the Vice President of its Executive Committee. You state that it
would be a conflict for you to serve both Board and professional staff roles; therefore,
you have resigned as Vice President of the WSCG Executive Committee and as the
Borough's delegate to WSCG, in order to assume the position of WSCG Executive
Director.
You ask for an advisory from the State Ethics Commission as to whether you
may simultaneously serve as a Borough Council Member and as Executive Director of
WSCG. You state your desire to continue representing the people of the Borough while
directing "the worthy efforts of our COG."
Discussion: It is initially noted that pursuant to Sections 1107(10) and (1 1) of
the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
Eichelberger, 99 -539
April 9, 1999
Page 2
the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (11). An advisory
only affords a defense to the extent the requestor has truthfully disclosed all of the
material facts.
As a Council Member for the Borough of Mechanicsburg, you are a public official
as that term is defined under the Ethics Act, and hence you are subject to the
provisions of that Act.
Section 1 103(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.
Section 1 103(j) of the Ethics Act provides as follows:
Section 1 103. 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,
Eichelberger, 99 -539
April 9, 1999
Page 3
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.
65 Pa.C.S. §1103(j).
Section 1103(a) of the Ethics Act does not prohibit public officials /public
employees from having business, employment or other outside activities; however,
the public official /public employee may not use the authority of his public position —
or confidential information obtained by being in that position — for the advancement
of his own private pecuniary benefit or that of a business with which he is associated.
Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section
1103(a) would include: (1) the pursuit of a private business opportunity in the course
of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such
as governmental telephones, postage, staff, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity
as to matters involving the business with which the public official /public employee is
associated in his private capacity, such as the review /selection of its bids or proposals,
Gorman, Order No. 1041.
If the private employer or business with which the public official /public
employee is associated would have a matter pending before the governmental body,
the public official /public employee would have a conflict of interest as to such matter.
Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public
official /public employee would be required to abstain from participation and to satisfy
the disclosure requirements of Section 1 103(j).
Under the facts which you have submitted, Section 1103(a) of the Ethics Act
would not preclude you as a Council member from being employed as the Executive
Director of the WSCG COG.
This Advice is limited to addressing the applicability of Section 1 103(a) of the
Ethics Act. It is expressly assumed that there has been no use of authority of office
for a private pecuniary benefit as prohibited by Section 1 103(a) of the Ethics Act.
Further, you are advised that Sections 1103(b) and 1 103(c) of the Ethics Act provide
in part that no person shall offer to a public official /public employee and no public
official /public employee shall solicit or accept anything of monetary value based upon
the understanding that the vote, official action, or judgment of the public official /public
employee would be influenced thereby. Reference is made to these provisions of the
Eichelberger, 99 -539
April 9, 1999
Page 4
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.
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 Borough Code
Conclusion: As a Council Member for the Borough of Mechanicsburg, you are
a public official subject to the provisions of the Ethics Act. Section 1103(a) of the
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 el seq.,
would not preclude you as a Council member from being employed as the Executive
Director of the WSCG COG, subject to the restrictions and qualifications as noted
above. In the event that the employer /business would have matter(s) pending before
your governmental body, then you would be required to abstain and to satisfy the
disclosure requirements of Section 1 103(j) of the Ethics Act set forth above. 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.
leZ
Vincent J.�pko
Chief Counsel