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HomeMy WebLinkAbout91-003 EdwardsSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair Dennis C. Harrington James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee DATE DECIDED: May 24, 19'1 DATE MAILED: June 10, 199 Mr. Robert C. Edwards, Executive Director Borough Councilmen's Association of Pa. 2941 North Front Street Harrisburg, PA 17110 Dear Mr. Edwards: I. Issue: 91 -003 Re: Conflict, Public Official, Borough Councilmen's Association of Pennsylvania, Borough, Councilmember, Scholarship This opinion is issued in response to your letter of request dated March 20, 1991. Whether under the Public Official and Employee Ethics Law, the members of the Board of the Borough Councilmen's Association of Pennsylvania are public officials and, if so, what restrictions would be imposed as to the implementation by the Board of a scholarship program to be awarded to a child of a member of a borough council holding membership in the Councilmen's Association. II. Factual Basis for Determination: As Executive Director of the Borough Councilmen's Association of Pennsylvania (BCAP), you inquire as to propriety of a scholarship fund which is administered by BCAP. BCAP is a Pennsylvania non - profit unincorporated association which is affiliated with, but separate and apart from, the Pennsylvania State Association of Boroughs. BCAP gives two $1,000 and two $750 scholarships to the son or daughter of a member of a council from a Pennsylvania borough that holds membership in BCAP. An independent panel, totally unrelated to BCAP, chooses the four scholarship recipients. The membership of the independent selection panel usually consists of a state official, generally a representative from the Department of Community Affairs, and a Mr. Robert C. Edwards Page 2 representative of an institution of higher education, usually from Shippensburg University. The panel makes its selection using such criteria as scholarship merit or achievement in extracurricular activities. The scholarship awards are derived from BCAP funds which are generated from dues or interest income. The annual dues is $15 per borough for membership of all its council persons, regardless of number. BCAP has a membership of approximately 550 with an annual budget of $10,000 and no paid staff. BCAP By -Laws set forth its object and purposes in part to be to promote unity of action in matters pertaining to councilmen and their duties and also to contribute to the formation of policies and resolutions of the Pennsylvania State Association of Boroughs. Councilmen holding membership in the Pennsylvania State Association of Boroughs are eligible for membership in BCAP. The executive board of BCAP consists of officers who are elected from members at the annual meeting and four other members, one of which is the immediate past president and three members elected at large. You conclude by requesting advice as to what restrictions the Ethics Law would impose upon the scholarship program. III. Discussion: Initially, we must determine whether the members of BCAP are "public officials" as that term is defined under the Ethics Law. The term public official is defined under Act 9 of 1989 as follows: Section 2. Definitions. "Public Official." Any person elected by the public or elected or appointed by a governmental body, or an appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. The term "public official" is defined in this Commission's regulations as follows: Section 1.1 Definitions. Public officials - -- Mr. Robert C. Edwards Page 3 An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The term does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the State or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. Mr. Robert C. Edwards Page 4 (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices, filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (D) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (E) School superintendents and assistant superintendents. (F) Persons appointed to positions designated as offices by code, charter or the like of the Commonwealth or its political subdivisions. (G) Members of municipal, industrial development, housing, parking and similar authorities. Mr. Robert C. Edwards Page 5 (H) Members of zoning hearing boards and similar quasijudicial bodies. (I) Members of other public bodies meeting the criteria set forth in subparagraph (i)(A). 51 Pa. Code §1.1. Since the executive board and the membership of BCAP are all borough councilmen and since the budget of BCAP is derived from dues from borough councils which hold membership in BCAP with funding derived from dues originally received as tax revenues within the individual boroughs, it is clear that the members of the executive board and members at large of BCAP are public officials subject to the provisions of the Ethics Law. The object and purpose of BCAP in part is to promote unity of action in matters pertaining to councilmen and their duties as well as to contribute to the formation of policies and resolutions of the Pennsylvania State Association of Boroughs. Thus, given the membership, the purpose and the funding of BCAP, it is clear that the members are public officials subject to the provisions of the Ethics Law. We must now determine whether the Ethics Law imposes any prohibition or restrictions upon the utilization of BCAP's associations's funds to promote a scholarship program whereby the son or daughter of a member of a participating council could receive such a scholarship chosen by an independent panel. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. 5403(a). The following terms are defined in the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class Mr. Robert C. Edwards Page 6 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 or his immediate family or a business with which he or a member of his immediate family is associated. Section 2. Definitions. "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. Section 2. Definitions. "Immediate family." A parent, spouse, child, brother or sister. Sections 3(b) and 3(c) of the Ethics Law 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 any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Under Section 3(a) of the Ethics Law, quoted above, it is clear that the scholarships in question are private pecuniary benefits. The sole question before us becomes whether there is a use of the authority of office on a part of a councilman whereby a son or daughter, being a member of his immediate family, would be eligible to receive a scholarship. Since it has been factually stated that the recipients are chosen by an independent panel composed of representatives usually from DCA and an institution of higher education, it would appear that the requisite element of a use of authority of office is lacking because the councilmember's son or daughter would be chosen by an independent panel. Our conclusion is based upon the assumption that the individual members of BCAD would have no direct or indirect part in the selection process. Therefore, based upon the above factual representations and assumptions, the members of BCAP would not be restricted from utilizing the association funds for the scholarships in question. Mr. Robert C. Edwards Page 7 As a postscript to the above, it is necessary to make two comments. First, we cannot comment upon the prudence of the utilization of BCAP funds, derived from dues and originally as borough tax revenues from the members of participating borough councils for the utilization of scholarship funds which are limited to sons or daughters of councilmembers holding membership in BCAP as such is beyond the scope of the Ethics Law. However, we do note that the preamble of the Ethics Act provides, in part, as follows: Section 1. Purpose. (a) The legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete financial disclosure as specified in this act. Furthermore, it is recognized that clear guidelines are needed in order to guide public officials and employees in their actions. Thus, the General Assembly by this act intends to define as clearly as possible those areas which represent conflict with the public turst. 65 P.S. S401(a). Secondly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. IV. Conclusion: Members of the Borough Councilmen's Association of Pennsylvania (BCAP) are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict the utilization of BCAP funds for scholarships for a son or daughter of a member of a borough council holding membership in BCAP when the scholarship selection is made by an independent panel. Lastly, the Mr. Robert C. Edwards Page 8 Commission neither comments upon the prudence of utilizing the funds for the scholarship program nor as to the propriety of such conduct under any other law other than the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the ommission, i 4.1.2e-,./ ✓/� ✓ ^mi e ena G. Hughes, Chair