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HomeMy WebLinkAbout00-514 KeenanNancy S. Keenan 601 E. Walnut St. Perkasie, PA 18944 Dear Ms. Keenan: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 15, 2000 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 00 -514 Re: Conflict; Public Official /Employee; Member; Borough; Council; Member; Officer; Senior Center; Vote; Funding; Budget; Business With Which Associated; Non - Profit Corporation. This responds to your letter of January 12, 2000 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 g eq., presents any prohibition or restrictions upon a borough council member who is also a member of a senior center that provides services in the borough as to voting or participating in matters relating to the granting of funds to construct a new senior center building, and the annual budget which provides for funding for the senior center. Facts: You are a Member of the Perkasie Borough Council. You are also Chair of the Bucks County Area Agency on Aging Advisory Board, a Member of the Southeast Regional Council of the Pennsylvania Council on Aging, and a Member of the Attorney General's Task Force on Crimes Against Older People. In addition; you have served on the Pennsylvania Council on Aging. You are also Director and Member of the Executive Committee of the Bucks County Association for Retired and Senior Citizens (BCARSC). BCARSC oversees the operations of five Senior Centers in Bucks County, including grant applications and compliance, and the administration of subcontracted state and federal services to area older residents and personnel. One of the five Senior Centers that BCARSC oversees is the Pennridge Senior Center (Center) which serves nine municipalities including Perkasie Borough. You are a Member of the Center, a Member of the Pennridge Senior Center Advisory Board (Advisory Board), and President of the Pennridge Senior Center Association, Inc. (Association). The Advisory Board and the Association support the Center by raising money to keep it operational. As a Member of the Center, you attend only one or two events a year in order to have a presence with the Membership. Keenan, 00 -514 February 15, 2000 Page 2 All the organizations with which you are involved are non - profit organizations chartered under State and Federal Rules. You derive no financial gain from your involvement in any of the above activities. Other than meals and mileage which are covered by the Pennsylvania State Boards, all other expenses, including your personal expenses and postage related to your activities related to fund raising, are covered by you. Currently, you play a key part in raising money to build a new building to replace the inadequate facility which serves the nine municipality Pennridge service area. As a member of the public, you have attended municipal meetings at all nine municipalities served by the Center, including Perkasie, to request building fund pledges covering a three -year period. You request an advisory as to the following questions. 1. As a Member of Borough Council, whether it would be ethical for you to argue the case in support of funding at Perkasie Borough Council meetings; 2. As a Member of Borough Council, whether it would be ethical for you to vote on the issue of granting building funds; and 3. As a Member of Borough Council, whether it would be ethical for you to vote on the annual budget which would include a nominal grant of $500 for the operation of the Center. 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 Council Member for Perkasie Borough, 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 1103(a) of the Ethics Act provides: Section 1 103. 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 Keenan, 00 -514 February 15, 2000 Page 3 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1 103(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 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 Keenan, 00 -514 February 15, 2000 Page 4 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 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. You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. Preliminarily, there is a factual question as to the relationship between the Pennridge Senior Center (Center), Pennridge Senior Center Advisory Board (Advisory Board) and Pennridge Senior Center Association, Inc. (Association). In particular, the facts as submitted do not reveal whether the foregoing bodies comprise one or more entities. In the absence of facts regarding the above, only general advice may be given as to the applicability of Section 1103(a) and 1 103(f) of the Ethics Act. If the Center, Advisory Board or Association would be a "business with which you are associated" as that phrase is defined in the Ethics Act, pursuant to Section 1 103(a) of the Ethics Act, you would be prohibited from using the authority of your office as a Member of Borough Council or any confidential information for the private pecuniary benefit of such "business." You state that you are merely a member of the Center and the Advisory Board. Based upon your express factual representation that the Center or the Advisory Board is a separate entity from the Association, and is not business in which you are a director, officer, owner, employee or have a financial interest, neither of the foregoing entities would be a business with which you are associated. Keenan, 00 -514 February 15, 2000 Page 5 However, the Association is a "business" with which you, as its President, are associated. As a corporation, the Association is clearly within that definition. Moreover, the fact that the Association is a non - profit corporation would not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the initial word "corporation ": "Any corporation, ... or any legal entity organized for profit." The clear and unambiguous statutory language is that any corporation, including a non- profit corporation, is a "business." Soltis- Sparano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConah', Opinion No. 96 -006). Since the Association is a "business" as that term is defined in the Ethics Act, it is clearly a business with which you are associated in your capacity as President. You state that the Association raises money to cover the operational costs of Center. Apparently, one of the ways that the Association raises money is by seeking funds from the Borough. Such funding would be a financial benefit to the Association. You would have a conflict of interest in matters of the Association that would come before Borough Council. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. Your specific inquiries shall now be addressed. As for your three questions regarding arguing in favor of funding, and voting on granting building funds and the annual budget, you are advised that Section 1 103(a) of the Ethics Act would prohibit you from participating in such activities to the extent that your activities would result in a financial benefit to a business with which you are associated. In such instances of a conflict, Section 1103(j) of the Ethics Act must be satisfied. 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 respective municipal code. Conclusion: As a Council Member for Perkasie Borough, you are a public official subject to the provisions of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. §1101 of seq. If the Pennridge Senior Center (Center), Pennridge Senior Center Advisory Board (Advisory Board) or Pennridge Senior Center Association, Inc. (Association) would be a "business with which you are associated" as that phrase is defined in the Ethics Act, pursuant to Section 1 103(a) of the Ethics Act, you would be prohibited from using the authority of your office as a Member of Borough Council or any confidential information for the private pecuniary benefit of such entities. Based upon your express factual representation that the Center or the Advisory Board is a separate entity from the Association, and is not business in which you are a director, officer, owner, employee or have a financial interest, neither of the foregoing entities would be a business with which you are associated. However, the Association is a "business" with which you, as its President, are associated. You would have a conflict of interest in matters of the Association that would come before Borough Council. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. Keenan, 00 -514 February 15, 2000 Page 6 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. rely, Vincent J. opko Chief Counsel