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Home My WebLink About00-564 PettiesSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL April 7, 2000 Rosa M. Petties Midland Borough Council P.O. Box 203 00 -564 Midland, PA 15059 -0203 Re: Conflict; Public Official /Employee; Member; Borough Council; Brother; Police Chief; Retirement; Budget; Civil Service Committee; Immediate Family. Dear Ms. Petties: This responds to your letter of March 10, 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 gt seq., presents any prohibition or restrictions upon a borough council member from participating as to matters involving the budget when her brother is the police chief. Facts: You are a Member of Midland Borough Council. You state that last year's former Council Members voted for a person to serve on the Police Civil Service Committee whom you have learned is a convicted felon. You state that even though this information is "common knowledge," the person was recently sworn into his position by the Mayor. You are concerned that this person could not be impartial in decisions regarding the Police Department. Additionally, you indicate that your brother serves as the Chief of Police. You state that you may not vote on "some things" concerning the Police Department. However, the former Council has passed a budget that does not include your brother's salary for this year, which you believe is a way to force him to retire. You state that your greatest concern is the "record" of the individual serving on the Police Civil Service Committee, as to whom you have submitted copies of his criminal record. You ask whether you would be able to vote on this issue of the budget. 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 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Petties, 00 -564 April 7, 2000 Page 2 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. Second, since you do not have standing to seek an advisory as to the member of the Police Civil Service Committee, this Advice will be limited to your conduct. As Member for Midland 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. §1102. 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, Petties, 00 -564 April 7, 2000 Page 3 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 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 Police Chief is your brother, he is a member of your immediate family as that term is defined under the Ethics Act. Consequently, you could not participate on any matters before Council that would have a financial impact upon your brother. As to the budget, you could participate provided it would not financially impact upon the status of your brother as police chief. However, if the funding for the police chief position is a separate line item on the budget, your conflict what be limited as to that particular line item of the budget involving you brother. Parenthetically, given that your brother is the Police Chief, it is assumed that he is not part of a class /subclass of two or more employees so as to fall within the purview of an exclusion under the Ethics Act regarding a matter "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." 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. Petties, 00 -564 April 7, 2000 Page 4 Conclusion: As Member for Midland 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 et seq. Since the Police Chief, as your brother, is a member of your immediate family, you could not participate on any matters before Council, including the budget, that would have a financial impact upon your brother. In such instances, you must observe the disclosure requirements of the Ethics Act as noted above. 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. erely, Vincent J. i opko Chief Counsel