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HomeMy WebLinkAbout00-569 BiancoSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL April 24, 2000 David F. Bianco, Esquire Fields and Bianco 707 West Main Street, Box 84 00 -569 Forest City, PA 18421 Re: Conflict; Public Official /Employee; Member; Borough Council; Volunteer Fire Company; Donations. Dear Mr. Bianco: This responds to your letter of March 15, 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 borough council members with regard to voting on matters regarding donations to the borough's volunteer fire comany, when three borough council members are volunteer firemen in the fire company. Facts: Vandling Borough Council ( "Borough ") currently has six members. Three of the councilmen are volunteer firemen in the Vandling Hose Co. Volunteer Fire Company ("Fire Company"). You inquire as to whether the three Council Members are permitted to vote on matters regarding donations to the Fire Company. You have also stated that if these Council Members must abstain from voting on such matters, the Borough will not have sufficient votes to pass resolutions regarding such donations. You also inquire as to whether the Council Members are permitted to vote on other matters pertaining to the Borough and the Fire Company. 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 Members of Vandling Borough Council, the Council Members are public officials as that term is defined in the Ethics Act, and hence they are subject to the provisions of that Act. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Bian 00 -569 April 24, 2000 Page 2 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. "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. 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 Bianco, 00 -569 April 24, 2000 Page 3 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. In applying the above provisions of the Ethics Law 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. Depending upon the circumstances in a given case, a fire company may be viewed as part of a governmental body, such as a borough, or as a private entity meeting the definition of "business" as set forth in the Ethics Act. If a fire company is part of the governmental body in which the public official /public employee serves, it may generally be said that a private pecuniary benefit to the fire company alone would not present a conflict of interest for the public official. Only if there were additional circumstances, such as if the public official /public employee or a " member of his immediate family would also derive a private pecuniary benefit, could there be a conflict of interest. If, on the other hand, the fire company is a "business," there is the potential for a conflict of interest solely based upon a private pecuniary benefit to the fire company, because the fire company is then an entity separate from the governmental body. The issue becomes whether the fire company is a "business with which Ethics [the public Act. That official/public definrt definition employee] include any that for which the public Bianco, 00 -569 April 24, 2000 Page 4 official /public employee or a member of his immediate family is a director, officer, owner, employee, or has a financial interest. Among the most significant factors in determining the status of a fire company is the degree to which the fire company is funded and controlled by the governmental body, see, 53 P.S. §65704, or alternatively raises its own funds and governs itself. The facts which you have submitted do not address the relationship between the Borough and the Fire Company. Therefore, it is impossible to determine whether the Fire Company is part of the Borough or is a business with which the Council Members are associated. If the Fire Company is part of the Borough, voting on the issue of donations to the Fire Company would not present a conflict of interest for any of the three Council Members on whose behalf you inquire because the pecuniary benefit would flow to a governmental body. On the other hand, assuming that the Fire Company is independent of the Borough, the Fire Company would be a business. The issue would be whether the Fire Company is a business with which the three Council Members are associated. If the Council Members are directors, officers, owners, employees, or have a financial interest in the business, then the Fire Company would be a business with which associated. In such an instance, the Council Member(s) would have conflict(s) of interest as to voting on donations to the Fire Company or other matters that would result in a private pecuniary benefit for the Fire Company, a business with which they are associated. However, if the Council Members are not directors, officers, owners, employees, or have a financial interest in the business, then the Fire Company would not be a business with which associated in which case the Council Members could participate as to donations and other matters involving the Fire Company. In each instance of a conflict of interest, those Council Members would be required to abstain from any participation of any nature and to publicly disclose the nature of the conflict, both orally at the public meeting and in a written memorandum filed with the secretary to be placed with the minutes pursuant to Section 1103(j) of the Ethics Act. In the facts you have submitted, you state that there are currently six members on the Vandling Borough Council. This statement suggests that there is a vacancy on the Council, which is usually comprised of seven members. For a seven member board, even if a vacancy exists, Section 1103(j) would be operative only if at least four members had Ethics Act conflicts. See, Mlakar, supra. 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 Members of the Vandling Borough Council, the three noted Council Members are public officials subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act would restrict all three Council Members from using the authority of office, or confidential information obtained by being in their public positions, for a private pecuniary benefit for themselves, for member(s) of their immediate families, or for business(es) with which they or member(s) of their immediate families are associated. Based upon the facts which have been submitted, Bianco, 00 -569 April 24, 2000 Page 5 it cannot be determined whether the Vandling Hose Co. Volunteer Fire Company ( "Fire Company ") is part of Vandling Borough ( "Borough ") or is a "business" as defined by the Ethics Act. If the Fire Company is part of the Borough, voting on the issue of donations to the Fire Company would not present a conflict of interest for any of the three Council Members. However, if the Fire Company is a "business" as that term is defined by the Ethics Act and those Council Members are directors, officers, owners, employees, or have a financial interest in the business, then they would have conflicts of interest as to donations and other matters which would result in a private pecuniary benefit to the Fire Company. On the other hand, if the Council Members are not directors, officers, owners, employees, or have a financial interest in the business, then the Fire Company would not be a business with which associated in which case the Council Members could participate as to donations and other matters involving the Fire Company. In each instance of a conflict of interest, the Council Members would be required to abstain from participation and to publicly disclose the abstention and the reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. As to a seven member council, even if a vacancy exists, Section 1103(j) would be operative only if four members had Ethics Act conflicts. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. R opko Chief Counsel