HomeMy WebLinkAbout00-553 PurcellSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
March 28, 2000
John M. Purcell, Esquire
Davis & Davis
107 East Main Street
P.O. Box 1163
Uniontown, PA 15401
Re: Conflict; Public Official /Employee; County; Register
Planning Office; Immediate Family Member; Wife;
Associated; Private Consulting Firm; Partnership.
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state_pa.us
00 -553
of Wills; Zoning and
Business With Which
Dear Mr. Purcell:
This responds to your letter of February 22, 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 et seq., presents any prohibition or restrictions upon a county register
of wills as to forming a private consulting business that will be involved with the
county planning and zoning office.
Facts: As counsel for Donald D. Redman ( "Redman "), the Register of Wills for
Fayette County ( "County "), you request an advisory based upon the following facts.
As a former official for the United Mine Workers' of America, Redman gained
substantial experience and expertise in all aspects of the mining industry. Redman
now wishes to form a partnership with his wife known as D & D Consulting
( "Partnership "), which will provide consulting services to companies involved in mineral
extraction in Southwestern Pennsylvania. The proposed work would occasionally
involve dealings with the County Zoning and Planning Office.
You ask whether Redman, as Register of Wills, would have a conflict as to his
work with the County Zoning and Planning Office.
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.
Purcell, 00 -553
March 28, 2000
Page 2
As Register of Wills for Fayette County ( "County "), Donald D. Redman
( "Redman ") is a public official as that term is defined in the Ethics Act, and hence
Redman is 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.
"Immediate family." A parent, spouse, child, brother
or sister.
"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.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
Purcell, 00 -553
March 28, 2000
Page 3
than 5% of the equity of the business or more than 5% of
the assets of the economic interest in indebtedness.
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 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.
Purcell, 00 -553
March 28, 2000
Page 4
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.
Since the term "immediate family" is defined to include a parent, spouse, child,
brother or sister, Redman's wife is a member of his immediate family. Furthermore,
once the Partnership is formed, it will be a business with which Redman and his wife
are associated. Pursuant to Section 1103(a), Redman would be prohibited from using
the authority of his office as Register of Wills or confidential information obtained from
being in that position for the private pecuniary benefit of himself, his wife, or the
Partnership. In each instance of a conflict, Redman would be required to abstain from
participation and to observe the disclosure requirements of Section 1103(j) of the
Ethics Act.
Having established the above principles, your question shall now be addressed.
As for whether Redman, as Register of Wills, would have a conflict as to the
Partnership's work with the County Planning and Zoning Office, you are advised as
follows. Section 1103(a) of the Ethics Act does not expressly prohibit public
officials /public employees from having outside business activities or employment;
however, the public official /public employee may not use the authority of his public
position - or confidential information obtained by being in that position - for the
advancement of his own private pecuniary benefit or that of a business with which he
is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be
prohibited under Section 1103(a) would include: (1) the pursuit of a private business
opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of
governmental facilities, such as governmental telephones, postage, staff, equipment,
research materials, or other property, or the use of governmental personnel, to conduct
private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the
participation in an official capacity as to matters involving the business with which the
public official /public employee is associated in his private capacity, such as the
review /selection of its bids or proposals. Gorman, Order No. 1041. Redman would
not have a conflict as to the Partnership's involvement with the County Planning and
Zoning Office provided that he would not be using the authority of his position as
Register of Wills or confidential information obtained by being in that position to
advance the business of the Partnership.
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 Register of Wills for Fayette County ( "County "), Donald G.
Redman ( "Redman ") is a public official subject to the provisions of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Redman's wife is
a member of his immediate family. The Partnership which Redman and his wife intend
to form will be a business with which he and his wife are associated. Pursuant to
Section 1103(a), Redman would be prohibited from using the authority of his office
as Register of Wills or confidential information obtained from being in that position for
the private pecuniary benefit of himself, his wife, or the Partnership. In each instance
Purcell, 00 -553
March 28, 2000
Page 5
of a conflict, Redman would be required to abstain from participation and to observe
the disclosure requirements of Section 1103(j) of the Ethics Act. Redman would not
have a conflict as to the Partnership's involvement with the County Planning and
Zoning Office provided that he would not be using the authority of his position as
Register of Wills or confidential information obtained by being in that position to
advance the business of the Partnership. 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
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.
Vincent Dopko
Chief Counsel