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Home My WebLink About00-545 GodshalkSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 21, 2000 Sherma L. Godshalk 623 Washington Street P.O. Box 597 Portland, PA 18351 00 -545 Re: Conflict; Public Official /Employee; Member; Borough; Council; Police Chief; Vote. Dear Ms. Godshalk: This responds to your letter of February 16, 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 eft 5,., presents any prohibition or restrictions upon a borough council member with regard to participating or voting to refer a matter involving the borough police chief to the district attorney where an individual with which the council member has a business relationship has initiated the request for the investigation. Fac s : As a Council Member for the Borough of Portland, you seek an advisory from the State Ethics Commission. The facts which you have submitted may be fairly summarized as follows. In your private capacity, you work part -time for an individual named Toni E. Lynch (Lynch). Lynch compensates you by paying for part of your work and by allowing you to use his office for various purposes. Lynch, who is neither a taxpayer nor a resident of the Borough, has attended numerous Council meetings to ask Council to look into alleged misconduct by the Borough Police Chief, J. Robert Cartwright (Cartwright). Cartwright has brought a lawsuit against Lynch. You state that the matter regarding Cartwright and Lynch has been ongoing for approximately seven months with no resolution. You state that Cartwright has indicated to your husband that "before this is all over, he will own houses and property." You believe that Cartwright was implying that he will own property owned by you and your husband. Most recently, Lynch has asked Council to send the whole matter regarding the allegations against Cartwright to the Northampton County District Attorney for investigation. At the February 7, 2000 Council Meeting, a motion was made and seconded to send the matter involving Cartwright to the District Attorney for review. The result FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Godshalk, 00 -545 March 21, 2000 Page 2 was a vote of 2 -2 -2. You were one of the two abstentions. The Mayor broke the tie by voting not to send the matter to the District Attorney. You state that you would like to send the matter to the District Attorney. You state your view that you would not be voting for either Lynch or Cartwright, but rather, would be voting to send the matter to an impartial investigating agency. Given these facts, you ask whether you may participate in the above matter. 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of the Portland Borough Council, 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 Godshalk, 00 -545 March 21, 2000 Page 3 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: 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. Godshalk, 00 -545 March 21, 2000 Page 4 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. Preliminarily, it is noted that you have expressed some concerns regarding Cartwright's conduct. To the extent you are inquiring about the conduct of someone other than yourself, you are advised that your inquiry is a third party request which cannot be addressed. The only question which you have properly submitted to the Commission is whether you would have a conflict of interest in participating as to referring the matter regarding Cartwright to the District Attorney for an investigation. Although you have a business relationship with Lynch, Lynch's request to the Borough would not appear to involve a private pecuniary benefit for Lynch or his business. Therefore, conditioned upon the assumption that neither you, a member of your immediate family, nor a business with which you or a member of your immediate family is associated would have a financial interest in such matter, you are advised that you would not have a conflict of interest in participating to refer the matter regarding Cartwright to the District Attorney. 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 of the Portland Borough Council, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 �t seq. You would not have a conflict in participating as to referring a matter regarding the Police Chief to the District Attorney for investigation conditioned upon the assumption that neither you, a member of your immediate family, nor a business with which you or a member of your immediate family is associated would have a financial interest in such matter. 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 Godshalk, 00 -545 March 21, 2000 Page 5 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. Sincerely, Vincent J. Do o Chief Counsel