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