HomeMy WebLinkAbout00-597 LennonBernadine Lennon
P.O. Box 222
Greentown, PA 18426
Dear Ms. Lennon:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
August 1, 2000
Re: Conflict; Public Official /Employee; Member; Pike County Conservation District;
Board; Director; Gift; Dinner.
This responds to your letter of June 27, 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 member of the
board of directors of a county conservation district as to the expenditure of public funds
to: 1) purchase a gift for a departing staff member or board member; 2) pay for an
annual or holiday luncheon for board and staff members and representatives from
cooperating agencies; and 3) subsidize an annual dinner that is open to the public and
features an educational speaker.
Facts: You are a member of the Pike County Conservation District ( "PCCD ")
Board of Directors. You state that PCCD directors and staff file the Statement of
Financial Interests annually.
The Board of Directors is reviewing policy regarding the use of PCCD's funds.
Most of PCCD programs receive funds from the State and /or County. PCCD has a
separate Activities Fund which was established for tree sale profits and other fund raising
activities. The Activities Fund is considered public money.
PCCD uses the Activities Fund solely to support its mission. Whenever possible,
expenditures from the Fund are used to fill in the gaps in funding for programs advancing
PCCD's mission. The Activities Fund balance is not used to supplement staff
compensation; rather, the Fund is used as a capital reserve for the possible future capital
needs of PCCD and a source of working capital for the Fund.
Under the current policy established by the Board of Directors, the Activities Fund
may be used for youth scholarships and sponsorships for youth education programs, for
example, scholarships for high school graduating seniors and sponsorships for youths to
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us
00 -597
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attend conservation and environmental schools; meetings and conferences such as the
Pennsylvania Association of Conservation District meeting; training for directors and staff;
marketing and other support of adult education on natural resource management issues;
donations; gifts; and the annual dinner.
You state that because the members of the Board of Directors are public officials
and PCCD staff are public employees, any Board policy regarding use of the Activities
Fund must comply with the Ethics Act and other related laws. You ask whether the
Activities Fund may be used for donations, gifts and the annual dinner. You specifically
pose the following questions:
1. Whether the Activities Fund may be used to purchase a gift for a departing
staff or Board member;
2. Whether the Activities Fund may be used to pay for an annual dinner or
holiday luncheon to which Board members, staff and representatives from cooperating
agencies attend, but to which the public at large is not invited; and
3. Whether the Activities Fund may be used to subsidize an annual dinner that
is open to the public and features an environmental or conservation- related educational
speaker.
You opine that as for the first and second questions, the use of the Activities Fund
would result in a personal financial gain to a Board member or the PCCD staff and would
violate the Ethics Act. As for the third question, you opine that because the event is
open to the public as well as PCCD Board and staff members and features an education
program that supports PCCD's mission, no violation of the Ethics Act would exist.
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 request 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 Pike County Conservation District Board of Directors, 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 1103(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 ublic
official or. public employee of the authority of his office or
employment or any confidential information received through
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August 1, 2000
Page 3
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.
Section 1103(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.
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August 1, 2000
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65 Pa.C.S. §1103(j).
In each instance of a conflict, Section 11030) 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 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.
Initially, it appears as though you are asking whether the utilization of the Activities
Fund for gifts, holiday luncheons and annual dinners constitutes an appropriate
expenditure of public funds. Such an issue is beyond the scope of the Ethics Act and as
such will not be addressed. In this regard, you are advised that the State Ethics
Commission may only address whether a specific act by a public official /public employee
is appropriate under the Ethics Act. To the extent that you are asking whether Board
members may utilize the Activities Fund for gifts, luncheons and annual dinners for
themselves or other Board members, the Commission has determined that if a particular
statutory enactment prohibits an official from receiving a financial benefit, then that
official's receipt of such a prohibited benefit, through the authority of public office, would
be contrary to Section 1103(a) of the Ethics Act.
In order to determine whether a member of the board of directors of a county
conservation district would be prohibited from receiving a gift in the scenario you pose,
the provisions of the Conservation District Law, 3 P.S. §849 et seq., must be reviewed. If
the receipt of a gift by a member of the Board of Directors is not permitted by the
Conservation District Law, then a director who receives such a gift would be receiving a
private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. If the receipt of a
gift by a member of the Board of Directors is not prohibited, then a director who receives
such a gift would not be receiving a private pecuniary benefit and would not have a
conflict under Section 1103(a) of the Ethics Act.
The Conservation District Law provides as follows:
§855. Appointment; qualifications; compensation; and tenure of directors
(2) The director appointed from the county goveming body shall
receive no additional compensation but shall receive traveling
expenses as allowed as a member of the county goveming body.
The other members of the board of directors shall serve without
pay, unless, at the district's request, the State Conservation
Commission approves the districts request to pay directors for
services rendered on specific projects at a rate approved by the
commission. The directors may be reimbursed for actual and
necessary expenses incurred while engaged in the performance
of their official duties, provided funds are made available by the
county governing body or by the State Conservation Commission
for such purpose, and under such terms and conditions as the
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August 1, 2000
Page 5
county governing body or the commission, whichever has
provided the funds, shall determine.
3 P.S. § 855(2) (Emphasis added).
The questions you pose shall now be addressed.
With regard to your first question, based upon your specific factual representation
that staff members are public employees, Section 1103(a) of the Ethics Act would not
prohibit the expenditure of the Activities Fund to purchase a gift for a departing staff
member because there would be no "use of authority" as a public employee for a private
pecuniary benefit. The question of whether the Activities Fund could be used to
purchase a gift for a "departing" Board member would depend upon whether the Board
member would have already departed from public office or would be receiving the gift as
a public official. If the Board member would have already departed from public office, so
as to be no longer a public official, no transgression of Section 1103(a) of the Ethics Act
would exist because there would be no "use of authority" as a public official for a private
pecuniary benefit. If the Board Member would be receiving the gift while still in office, a
conflict would exist under Section 1103(a) of the Ethics Act because the Board member,
by virtue of using the authority of office as a public official, would be receiving a private
pecuniary benefit not authorized in law.
With regard to your second question, Section 1103(a) of the Ethics Act would not
prohibit the utilization of the Activities Fund to pay for an annual dinner or holiday
luncheon for a staff member because there would be no "use of authority" as a public
employee for a private pecuniary benefit. However, a Board member who would attend
an annual dinner /holiday luncheon would be receiving a prohibited private pecuniary
benefit contrary to Section 1103(a) of the Ethics Act. Although the Conservation District
Law does make provision for actual and necessary expenses incurred in the performance
of official duties, a holiday /annual dinner is not considered within the ambit of official
duties.
With regard to your third question, it would appear that a Board member who
would attend a public annual dinner that features an environmental or conservation
related educational speaker would likely be performing official duties at that dinner.
Because the Conservation District Law provides that "directors may be reimbursed for
actual and necessary expenses incurred while engaged in the performance of their
official duties," no conflict would exist under Section 1103(a) of the Ethics Act provided
that such activity is part of their official duties.
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.
Conclusion: As a member of the Pike County Conservation District Board of
Directors, 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. Based upon your specific
factual representation that staff members are public employees, Section 1103(a) of the
Ethics Act would not prohibit the expenditure of the Activities Fund to purchase a gift for a
departing staff member because there would be no "use of authority" as a public
employee for a private pecuniary benefit. A gift could be purchased for a Board member
who would have already departed from public office, so as to be no longer a public
official, because there would be no "use of authority" as a public official for a private
pecuniary benefit. However, if a Board member would be receiving a gift while still in
office, a conflict would exist under Section 1103(a) of the Ethics Act because the Board
member, by virtue of using the authority of office as a public official, would be receiving a
private pecuniary benefit not authorized in law. Section 1103(a) of the Ethics Act would
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August 1, 2000
Page 6
not prohibit the utilization of the Activities Fund to pay for an annual dinner or holiday
luncheon for a staff member because there would be no "use of authority" as a public
employee for a private pecuniary benefit. However, a Board member who would attend
an annual dinner /holiday luncheon would be receiving a prohibited private pecuniary
benefit contrary to Section 1103(a) of the Ethics Act because his attendance at such a
function would not be considered to be within the ambit of his official duties. It would
appear that a Board member who would attend a public annual dinner that features an
environmental or conservation related educational speaker would likely be performing
official duties at that dinner. Because the Conservation District Law provides that
"directors may be reimbursed for actual and necessary expenses incurred while engaged
in the performance of their official duties," no conflict would exist under Section 1103(a)
of the Ethics Act provided that such activity would be part of their official duties.
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.
incent J. : pko
Chief Counsel