Loading...
HomeMy WebLinkAbout00-574 CalocciaEvelyn Caloccia 717 Sycamore Street New Eagle, PA 15067 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL May 4, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -574 Re: Conflict; Public Official /Employee; Tax Collector; Borough; Insurance; Group Plan; Spouse; Participation. Dear Ms. Caloccia: This responds to your letter of April 17, 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 tax collector and her spouse as to participation in the borough's health insurance program at their own expense. Facts: You are employed by New Eagle Borough ( "Borough "), New Eagle, Pennsylvania as an elected Tax Collector. Since your husband will be retiring at the end of September, 2000, you will be left with no health insurance. You request an advice as to whether you and your husband may participate in the Borough's health plan at your own expense. If participation is permissible, you request information as to benefits and appropriate charges. 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 Tax Collector for New Eagle 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. Since your spouse is not a public official /public employee, his conduct will not be addressed. However, your conduct as a public official, both as to the benefits that you seek for yourself as well as your spouse, will be addressed. Caloccia, 00 -574 May 4, 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. "Immediate family." A parent, spouse, child, brother or sister. 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. 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. Caloccia, 00 -574 May 4, 2000 Page 3 As to your participation in the Borough's insurance program, the Ethics Commission has considered the issue of whether a public official may participate in a group municipal health plan at his own expense and has determined that such participation does not present a conflict under the Ethics Act. See, Domalakes, Opinion 85 -010; Keiter, Opinion 90 -004. Accordingly, under Section 1103(a) of the Ethics Act, both you and your spouse may participate in the Borough's insurance program at your own expense. Your final inquiry regarding benefit information and appropriate charges is beyond the scope of the State Ethics Commission. 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 Tax Collector for New Eagle 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 et seq. Section 1103(a) of the Ethics Act does not prohibit you and your spouse from participating in the Borough's health insurance program at your own expense. 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. 1 Dopko Chief Counsel c i cerely, I incent