HomeMy WebLinkAbout01-604 CuppJohn S. Cupp, Jr., Esquire
Assistant County Solicitor
Office of the Commissioners
92 East Main Street, Suite 24
Uniontown, PA 15401 -3577
ADVICE OF COUNSEL
December 3, 2001
01 -604
Re: Conflict; Public Official /Employee; Assistant County Solicitor; Immediate Family
Member; Spouse; Law Firm; Business With Which Associated; Member; Zoning
Hearing Board.
Dear Mr. Cupp:
This responds to your letter of October 26, 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 an assistant county
solicitor and a zoning hearing board member where those individuals are husband and
wife.
Facts: As an Assistant County Solicitor for Fayette County ( "County "), you are a
part —time employee, for which you receive a salary and benefits. You represent or have
represented the Tax Claim Bureau, Assessment Office, County Commissioners, and
Election Bureau. There are two additional solicitors who represent the County. Some
County offices have their own solicitor.
Your wife is also an attorney with whom you share a rivate law office. Your wife is
being considered to fill a vacancy on the Fayette County Zoning Hearing Board ( "Zoning
Hearing Board "). Zoning Hearing Board members do not receive a salary or benefits, but
do receive a modest per diem payment from which their taxes are withheld.
The Zoning Hearing Board has its own solicitor. If the Zoning Hearing Board
solicitor cannot represent the Zoning Hearing Board in court, another County solicitor will
substitute. You contend that you would only get involved with the Zoning Hearing Board if
neither the Zoning Hearing Board solicitor nor the other County solicitors could act due to a
conflict. In such a case, you would defend the decision of the Zoning Hearing Board in
court.
Cupp, 01 -604
December 3, 2001
Page 2
You are unaware of any situation in which you or your wife would realize a financial
gain. You do not believe that your wife's position on the Zoning Hearing Board would
generate any economic gain for you. Further, you maintain that if you would be required to
defend the Zoning Hearing Board in court because the other County solicitors would have
a conflict, you would receive no additional compensation. You state, The Zoning Office
itself does not take an adversarial position before the Zoning Hearing Board and performs
administrative functions for the Zoning Hearing Board."
At the next County Commissioners' meeting, the Commissioners wish to fill the
vacancy on the Zoning Hearing Board through majority action. Assuming your wife would
become a Zoning Hearing Board member, you ask whether you or she would have a
conflict given your respective public positions.
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
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 Fayette County Assistant Solicitor, you are a public employee as that term is
defined in the Ethics Act. Hence, you are subject to the provisions of that Act. As a
member of the Fayette County Zoning Hearing Board, your wife would be a public official
as that term is defined in the Ethics Act. Hence, your wife would be subject to the
provisions of that 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.
Cupp, 01 -604
December 3, 2001
Page 3
sister.
"Immediate family." A parent, spouse, child, brother or
"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.
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
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.
Cupp, 01 -604
December 3, 2001
Page 4
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. In that the term "immediate family" is defined to
include a parent, spouse, child, brother, or sister, your wife is a member of your immediate
family and you are a member of your wife's immediate family. Further, the private law
office that you share with your wife is a business with which both you and your wife are
associated.
As to the question you have posed, the Ethics Act would not preclude your wife
from serving as a member of the Zoning Hearing Board while you serve as an Assistant
County Solicitor. However, you could not participate in matters that would result in a
financial gain to your wife or a business with which you or your wife is associated. In each
instance of a conflict, you would be required to abstain and observe the disclosure
requirements of Section 1103(j) of the Ethics Act. The same rule would apply to your wife
as a member of the Zoning Hearing Board.
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
County Code or the Rules of Professional Conduct.
Conclusion: As a Fayette County Assistant Solicitor, you are a public employee as
that term is defined in the Ethics Act. Hence, you are subject to the provisions of that Act.
As a member of the Fayette County Zoning Hearing Board, your wife would be a public
official as that term is defined in the Ethics Act. Hence, your wife would be subject to the
provisions of that Act. The Ethics Act would not preclude your wife from serving as a
member of the Zoning Hearing Board while you serve as an Assistant County Solicitor.
However, you could not participate in matters that would result in a financial gain to your
wife or a business with which you or your wife is associated. In each instance of a conflict,
you would be required to abstain and observe the disclosure requirements of Section
1103(j) of the Ethics Act. The same rule would apply to your wife as a member of the
Zoning Hearing Board. 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 § 13.2(h). The appeal may be received at the
Cupp, 01 -604
December 3, 2001
Page 5
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