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HomeMy WebLinkAbout02-567 BobishJeffrey S. Bobish 20 Tamaqua Street Beaver Meadows, PA 18216 Dear Mr. Bobish: ADVICE OF COUNSEL June 7, 2002 02 -567 Re: Conflict; Public Official /Employee; Borough Council Member; Assistant Fire Chief; Volunteer Fire Department; Non - profit; Business With Which Associated. This responds to your letter received on May 7, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a borough council member with regard to official action to transfer title to a fire truck from the borough to the local fire department, when the council member is also the assistant chief of the fire department. Facts: As a member of the Beaver Meadows Borough Council ( "Borough Crincil "), you seek an advisory from the State Ethics Commission. You have submitted facts which may be fairly summarized as follows. In addition to serving as a Borough Council Member, you are the Assistant Chief of the Beaver Meadows Volunteer Fire Department ( "Fire Department "). The Fire Department is a non - profit organization made up of volunteers. You state that as Assistant Chief of the Fire Department, you are strictly a line officer responsible for controlling fire personnel at the scene of an incident. You state that you have no control over the administrative matters of the Fire Department. The Fire Department is recognized as fire protection for Beaver Meadows Borough ( "Borough ") and receives funding from the Borough for operating expenses. There is no written contract between the Borough and the Fire Department. Recently, it was discovered that the Borough, rather than the Fire Department, is designated as the titled owner of a 1996 fire truck used by the Fire Department. You state that although the Borough and the Fire Department both contributed funds to purchase the truck, the majority of funds were provided through a community Bobish 02 -567 June 7, 2002 Page 2 development block grant issued by the Carbon County Office of Planning and Development. You further state that an inquiry has been made to the Carbon County Office of Planning and Development which, following consultation with the Pennsylvania Department of Community and Economic Development, has advised that the truck should be titled in the Fire Department's name. Given your status as Assistant Chief of the Fire Department, you are concerned that you may have a conflict of interest under the Ethics Act with regard to action by the Borough Council in this matter. You specifically ask whether you would have a conflict of interest with regard to making a motion to transfer the title to the fire truck to the Fire Department. 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 Borough Council Member, 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 pertaining to conflict of interest 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 Bobish 02 -567 June 7, 2002 Page 3 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, 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. You are advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular result. 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. Bobish 02 -567 June 7, 2002 Page 4 65 Pa.C.S. § 1103(j). In each instance of a conflict, Section 1103(j) requires the public official/ employee to abstain fully 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. Depending upon the circumstances in a given case, a fire company may be viewed as part of a governmental body, such as a borough, or as a private entity meeting the definition of "business" as set forth in the Ethics Act and above. If a fire company is part of the governmental body in which the public official /public employee serves, it may generally be said that a private pecuniary benefit to the fire company alone will not present a conflict of interest for the public official /public employee. Only if there are additional circumstances, such as if the public official /public employee or a member of his immediate family will also derive a private pecuniary benefit, will there be a conflict of interest. If, on the other hand, the fire company is a "business," there is the potential for a conflict of interest based upon a private pecuniary benefit to the fire company, because the fire company is then an entity separate from the governmental body. The issue becomes whether the fire company is a business with which the public official /public employee or a member of his immediate family is associated, as defined in the Ethics Act. The definition includes a business for which the public official /public employee or a member of his immediate family is a director, officer, owner, employee, or has a financial interest. Among the most significant factors in determining the status of a fire company is the degree to which the fire company is funded and controlled by the governmental body (see, 53 P.S. § 46202), or alternatively raises its own funds and governs itself. The facts which you have submitted do not address the relationship between the Borough and the Fire Department. Therefore, it is impossible to determine whether the Fire Department is part of the Borough or is a business for purposes of applying the Ethics Act to your inquiry. Based upon the limited facts which you have submitted, only general advice may be given. If the Fire Department is part of the Borough, the transferring of the fire truck title to the Fire Department will not present a conflict of interest for you because the pecuniary benefit will flow to a governmental body, and therefore, the elements for a conflict of interest will not exist. On the other hand, if the Fire Department is independent of the Borough, such that it is a "business" as defined by the Ethics Act, an additional issue will arise as to whether the Fire Department is a business with which you are associated in your capacity as Assistant Chief. Such will hinge upon whether the Assistant Chief is considered an officer position. If the Assistant Chief is an officer position, then Bobish 02 -567 June 7, 2002 Page 5 regardless of the duties of that position, the Fire Department will clearly be a business with which you are associated. If the Assistant Chief is not an officer position, then the Fire Department will not be a business with which you are associated. Assuming that the Fire Department is independent of the Borough and that the position of Assistant Chief is an officer position, then in your capacity as a Borough Council Member, you will: (1) generally have a conflict of interest under Section 1103(a) of the Ethics Act as to matters that will result in a financial gain to the Fire Department; and (2) specifically have a conflict of interest as to action by Borough Council involving transferring title to the 1996 fire truck from the Borough to the Fire Department. As noted above, in each instance of a conflict of interest, you will be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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 Beaver Meadows Borough Council ("Borough Z;ouncil "), 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. Based upon the facts which have been submitted, it cannot be determined v nether the Beaver Meadows Volunteer Fire Department ( "Fire Department ") is part of Beaver Meadows Borough ( "Borough ") or is a "business' as defined by the Ethics Act. If the Fire Department is part of the Borough, official action to transfer title to a 1996 fire truck from the Borough to the Fire Department will not present a conflict of interest for you. However, if the Fire Department is not part of the Borough such that it is a "business" as that term is defined by the Ethics Act, and if, as Assistant Chief, you are an officer of the Fire Department, then you will generally have a conflict of interest as a Borough Council Member as to matters that will result in a financial gain to the Fire Department, and you will specifically have a conflict of interest as to action by Borough Council involving transferring title to the 1996 fire truck from the Borough to the Fire Department. In each instance of a conflict of interest, you will be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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, Bobish 02 -567 June 7, 2002 Page 6 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