HomeMy WebLinkAbout99-647 WeissIra Weiss, Esquire
503 Fort Pitt Commons Building
445 Fort Pitt Boulevard
Pittsburgh, PA 1 521 9 -1 308
Re:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
December 28, 1999
99 -647
Conflict; Public Official /Employee; City; Council Member; Municipal Authority;
Immediate Family; Parent; Vote; Tie.
Dear Mr. Weiss:
This responds to your letter of November 29,
advice from the State Ethics Commission.
Section 1103(a) of the Ethics Act provides:
1999 by which you requested
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 et seq., presents any prohibition or restrictions upon a city council member as to
voting on the appointment of her parent to a compensated position on a municipal
authority if, on a four - member council plus the mayor as a voting member, the initial vote
is two in favor and two against, with the city council member abstaining on the matter.
Facts: • You represent Kimberly A. McAfoose ( "McAfoose "), an elected Council
Member of the City of New Kensington, a Third Class City ( "City "). The City Council
is comprised of four members as well as the Mayor who is a voting member.
McAfoose has asked you whether she may vote on the appointment of her father
to a compensated position on a municipal authority and you have advised her that she
must abstain. You pose the following question. Assuming McAfoose properly abstains
on a motion to appoint her father to a compensated position on a municipal authority and
the vote is two in favor and two against on a five - member council, may she then vote
after proper disclosure?
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.
As a Member of the New Kensington City Council, McAfoose is a public official
as that term is defined in the Ethics Act, and hence McAfoose is subject to the
provisions of that Act.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
Weiss, 99 -647
December 28, 1999
Page 2
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.
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:
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, prior to the vote being
Weiss, 99 -647
December 28, 1999
Page 3
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 1 103(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. The term "immediate family" is defined
to include a parent, spouse, child, brother or sister. Because McAfoose's father is one
of the familial relationships delineated above, he is a member of her immediate family.
Thus, McAfoose would be prohibited from using the authority of her office as a Council
Member, or confidential information obtained by being in that position, for the private
pecuniary benefit of her father. As stated above, in each instance of a conflict of
interest, McAfoose would have to abstain and observe the disclosure requirements of
Section 1103(j) of the Ethics Act.
As to your specific inquiry, Mlakar, supra, makes it clear that it is only when the
governmental body is unab /e to take official action because the majority or other legally
required vote is unattainable due to the number of members required to abstain, that
such abstaining members will be permitted to vote if proper disclosures are made. Thus,
in the case of the New Kensington City Council, a four- member council plus the Mayor,
three Members would have to have a conflict under the Ethics Act in order to make the
majority or other legally required vote "unattainable." Only in such an instance would
McAfoose be permitted to vote on the matter under the voting exception of Section
1 103(j) 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
Weiss, 99 -647
December 28, 1999
Page 4
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 of the City of New Kensington, McAfoose is a public
official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics
Act "), 65 Pa.C.S. §1101 el seq. McAfoose's father is a member of her immediate
family. Therefore, McAfoose would be prohibited from using the authority of her office
as a Council Member, or confidential information obtained by being in that position, for
the private pecuniary benefit of her father. In each instance of a conflict of interest,
McAfoose would have to abstain and observe the disclosure requirements of Section
1103(j) of the Ethics Act. Since the New Kensington City Council is a four - member
council plus the Mayor, three Members would have to have a conflict under the Ethics
Act in order to make the majority or other legally required vote of approval
"unattainable." Only in such an instance would McAfoose be permitted to vote on the
matter under the voting conflict exception of Section 1 103(j) of the Ethics Act. Lastly,
the propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(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,
incent .. Dopko
Chief Counsel