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HomeMy WebLinkAbout99-544 MiscavigeDaniel A. Miscavige, Esquire Mylotte, David & Fitzpatrick 67 North Church Street Hazleton, PA 18201 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL May 3, 1999 99 -544 Re: Conflict; Public Official /Employee; Borough Council Member; Municipal Authority Member; Dissolution of Authority; Authority Employee; Immediate Family Member. Dear Mr. Miscavige: This responds to your letters of March 25, 1999 and April 1, 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 .fieg., presents any prohibition or restrictions upon a Borough Council Member as to the proposed dissolution of a Municipal Authority, where the Borough Council Member's spouse is employed by the Authority, or where the Borough Council Member simultaneously serves as a Member of the Authority and himself receives compensation from that Authority. Facts: As Solicitor of the Beaver Meadows Municipal Authority (Authority), you request an advisory from the State Ethics Commission on behalf of three Members of the Beaver Meadows Borough Council (Borough Council), specifically, Mark Moyer (Moyer), Andrew Rusnock (Rusnock), and Richard A. Donald (Donald). The issue which has prompted your request is the anticipated vote by Borough Council as to whether to dissolve the Authority. In addition to serving as Members of Borough Council, Moyer and Rusnock also serve as Members of the Authorit y. From time to time, Moyer and Rusnock receive remuneration from the Authority for performing labor and maintenance services on behalf of the Authority. You state that you realize that this may constitute a "pecuniary interest" which would preclude them from voting as to the dissolution of the Authority. x $ Additionally, the spouse Borough Council Member Donald is an employee of the Authority, specifically, Sec etary of the Authority. l ou inquire as to whether Donald would have a conflict of interest as to the dissolution of the Authority based upon the "pecuniary interest" of his immediate family member. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Miscavige , 99 -544 May 3, 1999 Page 2 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Members of the Beaver Meadows Borough Council, Moyer, Rusnock, and Donald are public officials as that term is defined in the Ethics Act, and hence they are subject to the provisions of that Act. Likewise, in their capacities as Members of the Beaver Meadows Municipal Authority, Moyer and Rusnock are public officials subject to the Ethics Act. Section 1103(a) of the Ethics Act provides: 65 Pa.C.S. §1102. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. 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. "Immediate family." A parent, spouse, child, brother or sister. Section 1 103(j) of the Ethics Act provides as follows: Miscavige , 99 -544 May 3, 1999 Page 3 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 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. 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 Act, 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 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. In applying the elements of Section 1103(a) of the Ethics Act to the facts which have been submitted, it is clear that Moyer, Rusnock, and Donald would have conflicts of interest under the Ethics Act if they would use the authority of their public position(s), or confidential information obtained by being in such position(s), so as to preserve the existence of the Authority. The bases for such conflicts would be those which you have identified, respectively: the remuneration which Moyer and Rusnock receive from the Authority, and the employment by the Authority of Donald's spouse, who is a member of his "immediate family." Of course, absent some other basis for Miscavige , 99 -544 May 3, 1999 Page 4 a conflict of interest, action favoring the dissolution of the Authority would not transgress Section 1103(a) because a private financial detriment, rather than a private pecuniary benefit, would result. 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 or the Municipality Authorities Act of 1945. Conclusion: As Members of the Beaver Meadows Borough Council (Borough Council), Mark Moyer (Moyer), Andrew Rusnock (Rusnock), and Richard A. Donald (Donald) are public officials subject to the provisions of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. §1101 el seq. Likewise, as Members of the Beaver Meadows Municipal Authority (Authority), Moyer and Rusnock are public officials subject to the Ethics Act. Donald's spouse, who is employed as the Secretary of the Authority, is a member of his "immediate family." In the matter of the proposed dissolution of the Authority, given the remuneration which Moyer and Rusnock receive from the Authority, and the employment by the Authority of Donald's spouse, Moyer, Rusnock, and Donald would each have a conflict of interest under the Ethics Act as to using the authority of such public position(s), or confidential information obtained by being in such position(s), so as to preserve the existence of the Authority. Absent some other basis for a conflict of interest, action favoring the dissolution of the Authority would not transgress Section 1 103(a) because a private financial detriment, rather than a private pecuniary benefit, would result. 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. Sj6 rely, ° incent J. Dopko Chief Counsel