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HomeMy WebLinkAbout96-616 WilshireHenry Ray Pope, III, Esquire Pope, Pope & Drayer Ten Grant Street Clarion, PA 16214 Dear Mr. Pope: uwa rr STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 13, 1996 96 -616 Re: Conflict, Public Official /Employee, Borough, Council Member, University, Employee, State System of Higher Education, University Expansion, Zoning. This responds to your letter of November 8, 1996, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon council members who are employed by a university in the State System of Higher Education from participating on matters concerning a university expansion project which is not an authorized use under the borough zoning ordinance. Facts: Clarion Borough, by resolution of October 8, 1986, seeks an opinion concerning an upcoming issue which will affect Council Members Joanne Vavrek, Lee A. Krull, William Miller, and President Ronald J. Wilshire. Clarion University of Pennsylvania (University) is located within Clarion Borough whose Council is comprised of seven members, four of whom have relationships with the University. Lee A. Krull is a full -time employee of the Clarion Student Association, an incorporated non - profit organization to support University students funded by activity fees paid by the students. William Miller is a full -time University employee holding a coaching position with a one -year employment contract. Ronald J. Wilshire is a full -time management employee of the University which is an at -will position. Joanne Vavrek is not employed by the University, but her spouse, Bernard Vavrek, is a full -time University employee holding a faculty member position which is protected by a collective bargaining agreement. Pope 96 -616 December 13, 1996 Page 2 The University intends to purchase property in the Borough for expansion purposes. However, the acquisition of the property is for a use which is not authorized by the Borough zoning ordinance. In addition, the proposed expansion would require a subdivision. Both the zoning and subdivision issues will require a vote of Council Members. You seek an advisory as to whether these persons would be precluded from voting or participating on zoning or subdivision issues as a result of their relationship with the University. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Council Members for Clarion Borough, Lee A. Kruil, William Miller, Ronald J. Wilshire, and Joanne Vavrek are "public officials" as that term is defined under the Ethics Law, and hence they are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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 Pooe 96 -616 December 13, 1996 Page 3 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. sister. "Immediate family." A parent, spouse, child, brother or "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement 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 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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 Pace 96 -616 December 13, 1996 Page 4 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 goveming 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 goveming 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. If a conflict exists, Section 3(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 Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the provisions of the Ethics Law to the instant matter, Lee A. Krull would not have a conflict of interest. Since Krull is a full -time employee of the Clarion Student Association, but not of the University, Krull is not a "public official /employee" under the Ethics Law with regard to the position he holds in the non - profit organization. Accordingly, since Krull is not a public official /employee, he would not have a conflict regarding his participation in matters concerning the University. As to Joanne Vavrek, although her husband is an employee of the University, she is not. In order for Vavrek to have a conflict, it is necessary that the University be a business with which a member of her immediate family (spouse) is associated as that term is defined under the Ethics Law. The question becomes whether the University is a business under the Ethics Law. The word business is defined as follows: Section 2. Definitions "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint Pope, 96 -616 December 13, 1996 Page 5 stock company, receivership, trust or any legal entity organized for profit. 65 P.S. §402. Since the University is in the State System of Higher Education, it is clear that it is a governmental body. 24 P.S. §20- 2002 -A. See also, Warso, Order 974. The University is not a business under the Ethics Law. Since the University is not a business, then neither Miller or Wilshire who are employees of the University, nor Vavrek whose spouse is an employee of the University have a conflict as to the University because it is not a business with which a Council Member or spouse of a Council Member is associated. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As Council Members for Clarion Borough, Lee A. Krull, William Miller, Ronald J. Wilshire, and Joanne Vavrek are public officials subject to the provisions of the Ethics Law. The Clarion Borough Council Members who are employees of Clarion University or whose spouse is an employee of Clarion University or is an employee of a non - profit organization do not have a conflict as to voting on zoning or subdivision request issues which the University would have pending before Borough Council in that Clarion University, being part of the State System of Higher Education is a governmental body and not a business with which associated as that term is defined under the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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 Pope, 96 -616 December 13, 1996 Page 6 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. Vincent J. pko Chief Counsel