HomeMy WebLinkAbout01-596 SciscianiJames J. Scisciani
660 Shade Avenue
Bellevue, PA 15202
Dear Mr. Scisciani:
ADVICE OF COUNSEL
October 29, 2001
01 -596
Re: Conflict; Public Official /Employee; Member; Borough Council; Borough Parks and
Recreation Committee; Business; Business with which Associated; Member;
Knights of Columbus; Use of Authority of Office; Alleged Damage to Property of
Knights of Columbus.
This responds to your letter of September 25, 2001, 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 borough council
member who also serves as a member of the borough parks and recreation committee
with regard to participating as a public official in discussions or negotiations involving
alleged damage to property of the Knights of Columbus from a condition on borough
property, where, in his private capacity, the individual is a member of the Knights of
Columbus.
Facts: You are a member of the Bellevue Borough Council, the Bellevue Borough
Parks and Recreation Committee, and the Knights of Columbus Bellevue Council #1400.
You state that have never been an officer of the Knights of Columbus, "having attained a
Third Degree and possibly the Fourth Degree." (Scisciani Letter of September 25, 2001,
at 2). You do not explain the nature or meaning of the aforesaid Degrees.
Bayne Park of Bellevue abuts property owned by the Bellevue Knights of
Columbus. You state that it has been alleged that water runoff from the tennis court area
of the park may have damaged property owned by the Knights of Columbus.
Given that you are a member of the Bellevue Borough Council, the Bellevue
Borough Parks and Recreation Committee, and the Knights of Columbus, you ask
whether you may participate in your capacity as a public official in discussions and /or
negotiations pertaining to the water runoff situation described above.
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
Scisciani, 01 -596
October 29, 2001
Page 2
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
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 Bellevue Borough Council, you are a public official subject to
the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 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:
§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.
"Immediate family." A parent, spouse, child, brother
or sister.
65 Pa.C.S. § 1102.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, joint
stock company, receivership, trust or any legal entity
organized for profit.
"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 has
a financial interest.
Scisciani, 01 -596
October 29, 2001
Page 3
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:
§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.
Scisciani, 01 -596
October 29, 2001
Page 4
Under the facts which you have submitted, there does not appear to be any
potential basis for a conflict of interest under Section 1103(a) of the Ethics Act except as
to actions resulting in private pecuniary benefit(s) to the Knights of Columbus. The
remainder of this Discussion shall therefore focus upon whether the Knights of Columbus
is a business with which you or a member of your immediate family is associated.
The Knights of Columbus is a "business" as that term is defined in the Ethics Act.
The definition of the term "business" is very broad, Novak, Opinion 91 -009, and although
You do not specify the legal nature of the Knights of olumbus, it is at the very least an
"association" or "organization" within that definition.
Further, the fact that the Knights of Columbus might be a non - profit organization
would not disqualify it as a "business." The word "or" toward the end of the definition of
"business" is disjunctive, and the repeated use of the word "any" precludes any
interpretation that the final phrase "legal entity organized for profit" modifies the preceding
forms of entities in the list. See, Soltis - Sparano, Order 1045 at 31 (Citing, Confidential
Opinion, 89 -007; McConahy, minion 96 -006).
Having established that the Knights of Columbus is a "business" as that term is
defined in the Ethics Act, the question becomes whether it is a business with which you
or a member of your immediate family is associated. Through a straightforward
application of the statutory definition of the term "business with which he is associated,"
the necessary conclusion is that the Knights of Columbus is not a business with which
you or a member of your immediate family is associated, conditioned upon the
assumption that neither you nor a member of your immediate family is a director, officer,
owner, or employee of the Knights of Columbus or has a financial interest in the Knights
of Columbus.
Therefore, you are advised that you would not have a conflict of interest under the
Ethics Act with regard to matters before you in your capacity as a public official involving
the water runoff situation described above, conditioned upon the assumption that neither
you nor a member of your immediate family is a director, officer, owner, or employee of
the Knights of Columbus or has a financial interest in the Knights of Columbus.
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 Borough Code.
Conclusion: As a member of the Bellevue Borough Council who also serves on
the Bellevue Borough Parks and Recreation Committee, you are a public official subject
provisions the rovisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§ 1101 et seq. Based upon the facts which you have submitted, you are advised that in
your capacity as a public official, you would not have a conflict of interest under the
Ethics Act with regard to discussions or negotiations involving alleged damage to
property owned by the Knights of Columbus from a condition on borough property. This
Advice is conditioned upon the assumption that neither you nor a member of your
immediate family is a director, officer, owner, or employee of the Knights of Columbus or
has a financial interest in the Knights of Columbus. 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.
Scisciani, 01 -596
October 29, 2001
Page 5
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.
Sincerely,
Vincent J. Dopko
Chief Counsel