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HomeMy WebLinkAbout01-003 RohannaDear Mr. Rohanna: I. ISSUE: OPINION OF THE COMMISSION Gregory P. Rohanna, Coroner Greene County Coroner's Office 22 West High Street, Room 209 Waynesburg, PA 15370 Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Donald M. McCurdy DATE DECIDED: 5/15/01 DATE MAILED: 5/30/01 01 -003 Re: Conflict; Public Official /Employee; County Coroner; Coroner's Office; Use of Coroner's Private Office Space, Equipment; Reimbursement; Appeal of Advice. This Opinion is issued in response to the appeal of Advice of Counsel 01 -513, which was issued February 5, 2001. Whether the Public Official and Employee Ethics Act would prohibit or restrict a county coroner's receipt of a monthly payment from the county for the use and access of the coroner's own private office space /equipment for the coroner's office. II. FACTUAL BASIS FOR DETERMINATION: By letter dated February 22, 2001, you appealed Advice of Counsel 01 -513 issued February 5, 2001. The appeal of Advice did not delineate the nature of your objection to the Advice of Counsel other than to indicate the exercise of your right to appeal. In your initial advisory request letter dated January 3, 2001, you presented the following facts. You are the Coroner for Greene County. The office and equipment of the Coroner must be available 24 hours per day, 365 days per year. You have no full -time employees to operate a separate office. An arrangement has been proposed whereby Greene County would pay you what has been characterized as a "flat monthly expense reimbursement" of $250 for the use and Rohanna, 01 -003 May 30, 2001 Page 2 access of your own private office equipment and supplies, as well as heat, electric and office space. However, the County Controller has questioned the propriety of the proposed arrangement under the Ethics Act. You have stated your view that the County's proposed payment of $250 per month is a reimbursement of expenses that the County would have to pay anyway, and otherwise at a higher cost. You have asked whether your receipt of the proposed monthly payment from Greene County for the use and access of your own private office space /equipment would transgress the Ethics Act. Advice of Counsel 01 -513 was issued February 5, 2001. The Advice applied Section 1103(a) of the Ethics Act to your inquiry, in light of certain provisions of the County Code and certain rulings of this Commission. After determining that there is no authorization in the County Code for the proposed payment arrangement, the Advice concluded that the Ethics Act would prohibit your receipt of the proposed monthly payment from Greene County for the access and use of your own private office space or equipment for the Coroner's Office. The Advice reviewed and relied upon this Commission's rulings in Cappabianca, Opinion 89- 014 -R, and Harper, Opinion 94 -001. By letter dated April 24, 2001, you were notified of the date, time and location of the public meeting at which your appeal would be considered. Our review of this matter is de novo. III. 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, this 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 the Coroner of Greene County, you are a public official subject to the provisions of the Ethics Act. We shall initially set forth the pertinent provisions of the Ethics Act which are to be applied in this matter. 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 Rohanna, 01 -003 May 30, 2001 Page 3 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. "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 applying the above provisions of the Ethics Act to the facts which you have submitted, we find that Advice of Counsel 01 -513 is based upon established precedent and a straightforward application of the pertinent provisions of the Ethics Act. The Advice of Counsel correctly noted that although this Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, such other laws become relevant when it is necessary to determine whether a public official /employee may receive a particular pecuniary benefit under the Ethics Act. A pecuniary benefit which is not authorized in law is prohibited under the Ethics Act as a private pecuniary benefit. Marsh, Opinion 93 -007; Thompson, Opinion 99 -005. In this instance, we must review the County Code to determine whether your proposed arrangement with Greene County would be authorized in law or would result in a prohibited private pecuniary benefit. The County Code provides that the county commissioners shall, at the cost of the county, purchase and provide various equipment, furniture, supplies, services, and like items to county officers. 16 P.S. § 508. The county commissioners are directed to contract for and purchase such items and services for the county officers and agencies. 16 P.S. §1801. The county officers have a say as to the particular furniture, equipment and supplies purchased for their offices. 16 P.S. § 508(c). However, there is no authorization for such contractual arrangements to occur between the county and the county officers themselves. To the contrary, the County Code appears to prohibit elected or appointed county officers from having any direct or indirect personal interest in any contract to which the county is a party: §1806. County Officers Not to Be Interested in Contracts Rohanna, 01 -003 May 30, 2001 Page 4 Act. No elected or appointed county officer shall be in any wise, either directly or indirectly, personally interested in any contract to which the county is a party, or in the construction of any public work or improvement made or undertaken under the authority of the county commissioners, or receive any reward or gratuity from any person so interested. No such officer shall purchase directly or indirectly any property sold at a tax or municipal claim sale. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be sentenced to pay a fine not exceeding five hundred dollars ($500) and may, by decree of the court, be removed from office. 16 P.S. § 1806. Thus, there does not appear to be any provision in the County Code authorizing contracts with or payments to a coroner for the access and use of his own private office space or equipment for the coroner's office. Since, in your capacity as Greene County Coroner, you have the authority to specify at least to some extent the equipment and supplies that are to be provided by Greene County to the Coroner's Office, and since the particular arrangement which has been proposed would not be authorized in law, we must necessarily conclude that your receipt of the proposed monthly payment from Greene County for the use and access of your own private office space, equipment, supplies and the like for the Greene County Coroner's Office would constitute a use of the authority of your public office for a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act. Our ruling in this matter is consistent with our prior rulings in Cappabianca, Opinion 89- 014 -R, which held that a legislator was prohibited under the Ethics Act from charging his legislative district account with rent for a district office in a building which he owned, and Harper, Opinion 94 -001, which held that the Ethics Act would prohibit reimbursement to a former legislator of the portion of utility services attributable to the operation of her legislative district office within her personal residence. The prohibited private pecuniary benefit would result from the offset to any expense or loss which would be greater without the payment for use of your private office space /equipment. See, Cappabianca, supra, at 7 and Harper, supra, at 4 -5. Finally, we would note that the proffered savings to Greene County would not compel a different result. In Cappabianca, supra, we dispelled a similar argument: We are mindful of the fact that this decision may in some cases result in a greater capital outlay for office space. We, however are duty bound to review such questions under the provisions of the Ethics Law and interpret said Law in a manner that is consistent with the clear language thereof and the legislatively stated purpose ... . Cappabianca, Opinion 89- 014 -R, at 9. See also, Zangrilli, Order 949 at 143 ( "A 'good' illegal deal is still an illegal deal, ") and at 144 ( "... the offsetting of an operating cost can itself constitute a private pecuniary benefit. ") (Citing Friend, Order 800 and Harper, supra). Accordingly, we deny the appeal and affirm Rohanna, Advice of Counsel 01 -513. The propriety of the proposed conduct has only been addressed under the Ethics Rohanna, 01 -003 May 30, 2001 Page 5 IV. CONCLUSION: A county coroner is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. The coroner would be prohibited under Section 1103(a) of the Ethics Act from receiving a monthly payment from the county for the use and access of the coroner's own private office space or equipment for the county coroner's office. The appeal is denied. Rohanna, Advice of Counsel 01 -513 is affirmed. Pursuant to Section 1107(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. This letter is a public record and will be made available as such. By the Commission, Daneen E. Reese Chair