Loading...
HomeMy WebLinkAbout02-563 PaulovichTed Paulovich 124 Yost Drive Tarentum, PA 15084 Re: Conflict; Public Official /Employee; Board Member; Joint Sanitary Authority; Participation in Authority Term Life Insurance Program At Own Expense. Dear Mr. Paulovich: ADVICE OF COUNSEL May 30, 2002 02 -563 This responds to your letter of April 26, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a board member of a joint sanitary authority as to participating in the authority term life insurance program at the board member's own expense. Facts: You are a board member of the Upper Allegheny Joint Sanitary Authority btu T ority "). You ask whether you may participate in the Authority Term Life Insurance P rogram at your own expense. 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 board member of the Upper Allegheny Joint Sanitary Authority ( "Authority "), 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: Paulovich, 02 -563 May 30, 2002 Page 2 § 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. 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 Paulovich, 02 -563 May 30, 2002 Page 3 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. As to the question you have posed, the Commission has considered the issue of participation by public officials in municipal health insurance group plans at their own expense. See, Domalakes, Opinion 85 -010; Keiter, Opinion 90 -004; Dawson, Opinion 97 -003. Afthiugh the Commission has ruled iTat a public official may participate at his own expense in a municipal health insurance plan, the Commission also determined that the public official cannot use the authority of office in obtaining his own coverage. Thus, the public official could not participate in any action of the municipal body to make such coverage available to himself /herself. See, Dawson, supra: Unlike the Tax Collectors in the Opinions cited above, who would play no official role in the governmental body's decision as to whether to allow them to participate in its insurance coverage, a Borough Solicitor ordinarily would play a role in advising Borough Council in such matters. Since it would be your own participation in the insurance coverage that would be at issue, you would have a clear conflict of interest in matters involving your participation in the Borough's health insurance coverage. You would therefore be required to abstain fully from such matters and to satisfy the disclosure requirements of Section 3(j) set forth above. Id. at 5. Conditioned upon your abstention as Borough Solicitor and your satisfaction of the Section 3(j) disclosure requirements as to matters involving your participation in the Borough's health insurance coverage, if the Borough Council were to authorize your participation in Manor Borough's health insurance coverage at your own expense, such participation would not transgress Section 3(a) of the Ethics Law. Since the Borough Council would be making the decision as to whether you could participate, without any involvement by you as Solicitor, you would not be using the authority of your office so that that particular element of a Section 3(a) violation would be lacking. Paulovich, 02 -563 May 30, 2002 Page 4 Therefore, in your case, as long as you in your capacity as a board member do not use the authority of your office to provide for your own participation in the Authority's Term Life Insurance Program, as for example, where such action would be taken by the Authority with your abstention, then you may participate at your own expense in that Program. 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 a board member for the Upper Allegheny Joint Sanitary Authority ( "Authority "), 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 long as you in your capacity as a board member do not use the authority of your office to provide for your own participation in the Authority's Term Life Insurance Program, then you may participate at your own expense in that Program. 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 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