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HomeMy WebLinkAbout85-013 MarkhamRosemary Markham, Esquire Suite 320, Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219 Dear Ms. Markham: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 July 26, 1985 OPINION OF THE COMMISSION 85 -013 Re: Conflict of Interest, City Council Member Voting for Tax Proposal Affecting the Member's Private Employer Whether within the purview of the State Ethics Act, a member of a city council may vote on a tax proposal which may affect, the council member's private employer. You have requested the opinion of the State Ethics Commission on behalf of your client Michelle Madoff, a member of the Pittsburgh City Council. In addition to her position on the council, Ms. Madoff is employed by KDKA Radio, a Pittsburgh area radio broadcasting station. In this capacity, Ms. Madoff is the host of a talk show dealing with local issues of interest. The City Council of Pittsburgh is currently considering a proposal to decrease or eliminate the amusement tax which is currently levied on all forms of entertainment. This tax which relates to activities such as concerts, movies, and sporting events, is collected from the patrons of these activities as a cost included in the price of admission. This tax is collected by the sponsor or operator of the particular event. You have asked whether there would be any conflict of interest if Ms. Madoff were to vote on this proposal. You make this inquiry specifically in light of the fact that KDKA broadcasts the games of the Pittsburgh Pirates Baseball Club and derives revenue from such broadcasts. Rosemary Markham, Esquire July 26, 1985 Page 2 Pursuant to the information that you have supplied, the tax proposal will not directly affect KDKA. That is, the radio station will neither be taxed nor required to collect a tax, and the station will not be relieved of any tax that it is currently required to pay. Additionally, we assume, and this advice is, therefore, based upon the fact that the only relationship at this time between the station and the tax proposal is that the station broadcasts the games of the Pittsburgh Pirates Club, the taxed entity. III. Discussion: As a member of the Pittsburgh City Council, Ms. Madoff is a public official as that term is defined in the State Ethics Act and, therefore, subject to the requirements thereof. 65 P.S. §402; Boyle, 80 -020. Generally, the Ehtics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Additionally, the Act provides the following definition: Section 2. Definitions. "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 holder of stock. 65 P.S. 402. Clearly Ms. Madoff is associated with KDKA. Under the provisions of the Ethics Act, a public official may not use his or her public office or confidential information obtained therein to secure financial gain other than the compensation allowed by law for the official or a business with which he or she is associated. A reduction or elimination of a tax must be considered a financial gain within the above provision of law. With the foregoing in mind, we must now decide whether, in participating in the adoption of the aforementioned tax proposal, Ms. Madoff would be utilizing her public office to secure financial gain as prohibited by Section 3(a) of the Ethics Act. Rosemary Markham, Esquire July 26, 1985 Page 3 Initially, we must note that the tax proposal currently under consideration does not appear to affect in any way KDKA. It is difficult to envision how a reduction in the taxes due from the baseball franchise will in any way inure to the benefit of the radio station. Even assuming, however, that the proposal in some way affects the employer of Ms. Madoff, we must review the effect in light of prior Commission opinions. Generally, the rulings of this Commission have concluded that a public official is required to abstain from participation in matters presented to the governmental body where he or she serves if where those matters specifically relate to his or her employer, or where the matters involve non - routine items. See Reisinger, 146 -C; Krier, 84 -002; Blaney, 84 -003; Stewart, 79 -070. We also note that courts have often required an abstention because of "pecuniary" or financial interest where those affected interests can be said to be direct, immediate, and particular, as distinct from the interests that might be shared by a larger group or the public in general. See Reckner v. School District of German Township, 341 Pa. 375 19 A.2d 402 (1941) citing Commonwealth v. Raudenbush, 249 Pa. 86, 94 A.55 (1913). From the facts as presented, it is apparent that even if the tax proposal in fact, affects the radio station, such proposal would not specifically, or individually benefit that entity. To the contrary, the station would he only one of hundreds of effected entertainment enterprises. Thus, we see no reason to depart from our prior opinions and find no potential violation of Section 3(a) of the Ethics Act in the instant situation. Section 3(a) also prohibits a public official from using confidential information that is obtained in the official's position to secure financial gain. In this respect, Ms. Madoff could not use any such information for the benefit of KDKA. For example, if the status of the council's action on this tax proposal could be useful to KDKA in their negotiations with the baseball club, Ms. Madoff may not offer or supply such information to KDKA. We note that the purpose of the Ethics Act is to insure that the financial interests of public officials and employees are not in conflict and do not appear to be in conflict with the public trust. 65 P.S. §401. Generally, the Ethics Commission may address such areas of conflict. 65 P.S. §403(d); Alfano, 80 -007. As previously stated herein, we do not believe that the tax proposal affects the radio station to any degree. In the event that it did, however, we note that the above provisions of the Act may operate to place some restrictions upon Ms. Madoff's participation in this matter. We make note of this only to provide a complete response to your inquiry. Rosemary Markham, Esquire July 26, 1985 Page 4 IV. Conclusion: The Ethics Act presents no prohibition upon a city council member voting upon a tax proposal which may remotely affect that council member's private employer. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /sfb By the Commission, HER:'RT B. CONNER Chairman