HomeMy WebLinkAbout99-600 NovajoskyPeter Novajosky
Borough of Dickson City
801 -805 Boulevard Ave.
Dickson City, PA 18519
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
September 8, 1999
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us
99 -600
Re: Conflict; Public Official /Employee; Council Member; Borough; Newsletter;
Contributions.
Dear Mr. Novajosky:
This responds to your letter received on August 9, 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 gt seq., presents any prohibition or restrictions upon a Borough Council
President with regard to preparing a newsletter for the purpose of keeping the public
informed and accepting contributions from the general public to defray its costs.
Facts: As a Member and President of Borough Council for Dickson City,
Pennsylvania, you seek an advisory from the State Ethics Commission.
You ask whether preparing a newsletter for the stated purpose of keeping the
public informed, and accepting contributions from the general public for its publication,
would be permitted under the Ethics Act. The newsletter would contain some items
of a political nature, sych as a campaign slate of candidates. You submit the following
as an example of what you have in mind: "Now that you have read the newsletter,
please vote for the following..."
You state that you would include the Borough's telephone and fax numbers and
instruct the readers to contact you there, not at your residence. You would state in
the newsletter that you are the majority council member and are doing this to keep the
public informed.
You would like to accept contributions from the general public to defray the cost
of the printing. You ask whether you would have to report such contributions, and if
so, where. You also ask whether the contribution records should be kept for public
inspection.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(11) 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
Novajoskv, 99 -600
September 8, 1999
Page 2
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 a Member and President of Borough Council for Dickson City, Pennsylvania,
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 1 103(a) of the Ethics Act provides:
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.
65 Pa.C.S. §1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that
no person shall offer to a public official /employee anything of monetary value and no
public official /employee shall solicit or accept anything of monetary value based upon
the understanding that the vote, official action, or judgment of the public
official /employee would be influenced thereby. Reference is made to these provisions
of the 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.
Section 1 103(j) of the Ethics Act provides as follows:
Novajosky, 99 -600
September 8, 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
reviewing your request, it must be determined whether there would be a use of the
authority of your public office for a private pecuniary benefit.
In this case, it appears from the facts which you have submitted that you are
proposing to do the newsletter as a private undertaking. This is presumably due to the
political nature of some of the proposed content of the newsletter. The Ethics Act
prohibits the use of governmental facilities, equipment, employees, and other resources
for election activities or other personal purposes. See, e.g., Freind, Order No. 800;
Rockefeller, Order No. 1004; and Rakowsky, Orders Nos. 744 and 943.
Novajoskv, 99 -600
September 8, 1999
Page 4
Since you would be undertaking the publication of the newsletter privately,
using private rather than public (Borough) funds, contribution(s) for the newsletter
would constitute gift(s) to you for purposes of applying the Ethics Act. See, Gigliotti,
Opinion No. 89 -020. There is no per se prohibition under the Ethics Act as to the
receipt of true, "no- strings- attached" gifts by a public official /employee. See, Cooper,
Opinion No. 92 -009 (Citing Wolfgana, Opinion No. 89 -028). Of course, a gift or gifts
valued in the aggregate at $250 or more must be disclosed on the Statement of
Financial. Interests, pursuant to Section 1105(b)(6) of the Ethics Act. 65 Pa.C.S.
§1105(b)(6). Such disclosure must include the name and address of the source, the
amount of the gift or gifts, and the circumstances of each gift. Gifts which do not
meet the aggregate threshold of $250 need not be disclosed. Additionally, gifts made
by a friend need not be disclosed provided: (1) the friend is not a registered lobbyist
or an employee of a registered lobbyist; and (2) the gift is motivated purely by a
personal relationship.
You are cautioned, however, that the acceptance of a gift may potentially form
the basis for a conflict of interest in matters pertaining to the donor which would come
before you in your capacity as a public official. There have been various cases where
the State Ethics Commission has found violations based upon particular facts where
public officials have accepted gifts from vendors or individuals and acted upon matters
which the donors had pending before the governmental body.
In Sickles, Order No. 901, the State Ethics Commission held that a school
district Food Service Director violated Section 3(a) of the Ethics Law , Act 9 of 1989,
when she used the authority of her position as Food Service Director to select and
place orders with a particular vendor who offered "premium points " -- that could be
used to receive gifts -- and then used the premium points for a wicker furniture set for
herself rather than for a credit to the district's account.
In Helsel, Order No. 801, the State Ethics Commission held that a School
Director violated Section 3(a) of the State Ethics Act (Act 170 of 1978) by using
public office to obtain a financial gain for himself and members of his immediate family
by supporting or voting for vendors as to school district contracts in return for gifts or
gratuities. The Commission further held that Helsel violated Section 3(b) of the Ethics
Act by soliciting or receiving gifts or gratuities of value from vendors who held school
district contracts based upon the understanding that his vote, official action or
judgment would be influenced thereby.
In Volpe, Order No. 579 -R and Smith, Order No. 578 -R, township supervisors
were found to have violated Section 3(a) of the Ethics Act by using office to obtain
an all expense paid trip to Europe for two weeks for themselves and various family
members from a developer who had matters pending before the township. Volpe and
Smith were also found to have violated Section 3(b) of the Ethics Act in that they
received the trip to Europe based upon the understanding that it would influence their
action as township supervisors relative to matters that were pending before the
township by the developer. In Montemayor, Order No. 574, one of the other township
supervisors who did not accept the trip to Europe but who did travel to New York City
with the same developer, did not violate Section 3(a) where he paid for his own share
of the travel expenses and lodging but did accept opera tickets from the developer
(valued at $13 each). However, the Commission noted that the fact that the
supervisor traveled with the developer who had been actively seeking township action
on various proposals, and the fact that he accepted opera tickets from that developer,
created the "appearance" of a conflict of interest.
Novajosky, 99 -600
September 8, 1999
Page 5
In Feller, Order No. 576 -R, a township manager was found not to have violated
either Section 3(a) or Section 3(b) by accepting free chlorine for his private swimming
pool from the owner of a corporation which had contracts with the township, where
there was insufficient evidence to establish the use of public office or acceptance of
anything of value to influence his official action relative to the receipt of the chlorine.
A technical violation of Section 3(a) was found as to Feller's acceptance and use of
free tickets for sporting events from a cable television corporation which had contracts
with the township. No violation was found as to the acceptance of blankets, vice
grips, and flasks from the cable company which were turned over to the Pennsylvania
Association of First Class Township Commissioners. In a related case, Zollo, Order
No. 577, a township supervisor did not violate Section 3(a) or 3(b) where he received
a thirty -five pound container of swimming pool chlorine from the township manager
(Feller) who had received it from the aforesaid owner of the chemical company, or
where he accepted three sets of free tickets from the cable corporation two years after
the contract was awarded and before any rate increase request was submitted. In that
case, Zollo offered to pay Feller for the chlorine; did not personally use the tickets but
passed them on to others; and further denied that his acceptance of said tickets or of
the chlorine affected any township decisions that he made. See, also, Love, Advice
No. 98 -527 (stays at a ski resort); Confidential Advice, No. 98 -544 (movie passes).
Although the decision as to whether a conflict of interest is presented by the
receipt of a gift is determined on a case -by -case basis, the circumstances which you
have presented would appear to be adequate to support the finding of a conflict of
interest assuming you would use the authority of office or confidential information in
matter(s) related to a donor. Thus, although the Ethics Act would not preclude you
from accepting the aforementioned gift or gifts, you may have a conflict of interest in
matters involving donor(s). It is suggested that you obtain further advice from the
Commission when potential conflicts of interest arise.
In each instance of a conflict of interest, you would be required to abstain from
participation and to satisfy the disclosure requirements of Section 1 103(j) as set forth
above.
As for your questions regarding record - keeping and reporting of contributions,
to the extent the Ethics Act would impose reporting requirements they are as set forth
above. Any other requirements may not be addressed because such would be beyond
the scope of the Ethics Act.
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 Member and President of Borough Council for Dickson City,
Pennsylvania, you are a public official subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 ei• seq. Pursuant to
Section 1 103(a) of the Ethics Act, you may prepare a newsletter for the purpose of
keeping the public informed and you may also accept contributions for the publication
of such newsletter subject to the conditions, restrictions, and qualifications noted
above. Since you would be undertaking the publication of the newletter privately,
using private rather than public (Borough) funds, such contributions would constitute
gifts to you which would be subject to the Ethics Act's requirements for disclosure on
your Statements of Financial Interests. The acceptance of a gift may potentially form
the basis for a conflict of interest in matters pertaining to the donor which would come
Novajoskv, 99 -600
September 8, 1999
Page 6
before you in your capacity as a public official. The decision as to whether a conflict
of interest is presented by the receipt of a gift is determined on a case -by -case basis.
The circumstances which you have presented would appear to be adequate to support
the finding of a conflict of interest assuming you would use the authority of office or
confidential information in matter(s) related to a donor. It is suggested that you seek
further advice from the Commission when potential conflicts of interest arise. Lastly,
the propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1 107(1 1), 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.
cerely,
Vincent .!. Dopko
Chief Counsel