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HomeMy WebLinkAbout99-614 StraubJohn J. Straub 20 Park Lane Exeter, PA 18643 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL October 4, 1999 99 -614 Re: Conflict; Public Official /Public Employee; Council Member; Borough; Pension; Police. Dear Mr. Straub: This responds to your letter of August 27, 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 am., presents any prohibition or restrictions upon an individual becoming a borough council member when he receives a disability pension as a retired police officer from the borough. Facts: In 1996, you retired from the Exeter Police Department due to an injury. You currently receive 100 percent of your disability pension. Since you won the May primary, you will be a candidate for Borough Council in the November election. You inquire whether there would be a conflict in receiving compensation as a Council Member while receiving a disability pension from the Borough. After you posed this inquiry to the Pension Board, "Asco Finance," you were told that there is no conflict on the basis that holding a position on council has no bearing to receiving a police pension. You request an advisory regarding the above. 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: ethics@state.pa.us Straub, 99 -614 October 4, 1999 - Page 2 As a Council Member for Exeter, you would be a public official as that term is defined in the Ethics Act, and hence you would be 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 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 Straub, 99 -614 October 4, 1999 - Page 3 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, pursuant to Section 1 103(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. As to whether the Ethics Act would impact upon your serving on Council while receiving a pension, the Commission has determined that if a particular statutory enactment prohibits an official from receiving a financial benefit, then that official's receipt of such a prohibited benefit, through the authority of public office, would be contrary to Section 1 103(a) of the Ethics Act. In order to determine whether a council member would be prohibited form receiving a borough pension, the provisions of the Borough Code, 53 Pa. Stat. Ann. §45101 el seq., (Code), together with any ordinances or Borough policy regarding individuals serving on Council who are receiving pensions, must be reviewed. If the receipt of a Borough pension by a council member is not permitted by the Code, ordinance or policy, then a council member who receives a pension would be receiving a private pecuniary benefit contrary to Section 1 103(a) of the Ethics Act. Contrariwise, Straub, 99 -614 October 4, 1999 Page 4 if the receipt of a pension by a salaried council member is not prohibited, then a council member who receives a pension would not be receiving a private pecuniary benefit and would not have a conflict under Section 1 103 of the Ethics Act. In your case, there does not appear to be any prohibition in the Code precluding a borough council member from receiving a borough pension. You have not supplied any information regarding Borough ordinances or policies that might impose limitations as to the receipt of pensions upon sitting Council Members. Therefore, based upon the information supplied, we are unable to determine under the Ethics Act whether you may receive such pension benefits while serving on Council. Even assuming that there is no such prohibition by ordinance or policy, you still would have . a conflict as to participating as a Council. Member regarding pension issues before Council. If voting . on rmatters concerning the Borough pension plan would result in a financial benefit to you, as in increasing the amount of your own pension, you would have a conflict of interest as to that matter and would have to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. Parenthetically, if a public official has a conflict under the Ethics Act, there is a "class /subclass" exclusion which allows participation if certain conditions are met. A public official who has a conflict may participate in matters involving a pecuniary benefit if such action affects a class /subclass consisting of more than one person and affects all of the members of the class /subclass to the same degree. For example, if the Council were considering giving an increase in pension benefits to all eligible pension recipients (more than one person) and the increase would be the same for all pension recipients, then in that instance, participation as to the pension matter would be permitted under the Ethics Act. See, Van Rensler, Opinion 90 -017. Based upon the limited facts you have submitted, the Commission cannot determine whether you, while serving on Council, could receive pension benefits because it is unknown whether any ordinance or Borough policy would impact upon such pension benefits. Even assuming that there would be no ordinance or policy prohibiting the receipt of a Borough pension while serving on Council, a conflict would arise if matters involving pensions came before Council. In such instances of conflict, you would have to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics unless the "class /subclass" exclusion, as discussed above, would apply. 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. ConCluSion: As a Council Member for Exeter, you would be a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gI fig. Based upon the limited facts you have submitted, the Commission cannot determine whether you, while serving on Council, could receive pension benefits because it is unknown whether any ordinance or Borough policy would impact upon such pension benefits. Even assuming that there would be no ordinance or policy prohibiting the receipt of a Borough pension while serving on Council, a conflict would arise if matters involving pensions came before Council. In such instances of conflict, you would have to abstain and observe the disclosure requirements of Section 1 103(j) of the Ethics unless the "class /subclass" exclusion would apply. Straub, 99 -614 October 4, 1999 Page 5 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. Irfilerely, Vincent J. Dopko