HomeMy WebLinkAbout00-607 PikeDarlene J. Pike
Armstrong County Office of the Controller
450 East Market Street
Courthouse Complex
Kittanning, PA 16201
Re: Conflict; Public Official /Employee; County; Controller; Member; County Retirement
Board; Class /Subclass.
Dear Ms. Pike:
ADVICE OF COUNSEL
September 13, 2000
00 -607
This responds to your letter of August 11, 2000 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a county controller
who is a member of the county retirement board with regard to taking advantage of an
early retirement incentive plan offered to eligible county employees.
Facts: You are the Controller of Armstrong County ( "County "). You are also a
voting member of the Armstrong County Retirement Board ( "Retirement Board "). The
Retirement Board consists of three County Commissioners, the Controller and the
Treasurer. When all members are in attendance, three votes are required to take official
action.
You have enclosed a copy of a letter dated February 4, 2000 from the County's
actuaries to the Retirement Board explaining the Early Retirement Incentive Plan ( "Early
Retirement Plan"). You have also enclosed a copy of the minutes of the Retirement
Board meeting of February 25, 2000 reflecting the Board's unanimous approval of the
offering of the Early Retirement Plan to all 61 eligible employees. Finally, you have
submitted a copy of a memorandum dated July 7, 2000 that was given to all members of
the Armstrong County Retirement Program. All the foregoing documents are
incorporated herein by reference.
You ask whether you would violate the Ethics Act if you would take advantage of
the Early Retirement Plan.
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
Pike, 00 -607
September 13, 2000
Page 2
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 the Controller for Armstrong County and as a member of the Armstrong County
Retirement Board, 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 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.
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as one
party and a public official or public employee as the other
party, concerning his expense, reimbursement, salary, wage,
retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
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
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September 13, 2000
Page 3
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.
65 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1103(j) 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.
A public official /public employee who would otherwise have a conflict under
Section 1103(a) of the Ethics Act would be required to abstain and observe the
disclosure requirements of Section 1103(j) unless that public official /public employee
would fall within the exclusion to the statutory definition of "conflict of interest" known as
the class /subclass exclusion. In order for that exclusion to apply, the public official /public
employee would have to be in a class /subclass consisting of more than just one person
and would have to be affected to the same degree as the other members of the
class /subclass. For example, the Commission in Van Rensler, Opinion 90 -017, applied
the class /subclass exclusion in determining that a school director could vote on the final
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September 13, 2000
Page 4
ratification of a collective bargaining agreement with the teachers even though his spouse
was a teacher because his spouse would receive the same benefits as all other teachers
under the contract.
In the instant case, it is noted that the Early Retirement Plan is a "standard" plan
that is available to all members who meet the following qualifications at any time during
the window period: age 55 with 10 years of service with the County or 30 years of service
regardless of age. It is also noted that all eligible members would receive a 30%
increase in credited service under the Plan. Based upon these facts, it would appear that
as a member of a class /subclass consisting of 61 eligible County employees, you would
receive an increase in retirement benefits to the same degree as all the other members of
that class /subclass. Hence, you would fall within the above exclusion to the statutory
definition of conflict and could participate in the Early Retirement Plan.
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 the Armstrong County Controller and as a member of the
Armstrong County Retirement Board, 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. As to
participating in the Early Retirement Plan where you would be one of 61 eligible
employees who would receive the same 30% increase in retirement benefits, you would
fall within the above exclusion to the statutory definition of conflict and could participate in
the Early Retirement Plan. 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 §13.20. 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.
Sincerely,
Vincent J. Dopko
Chief Counsel