HomeMy WebLinkAbout99-544 RusnockDaniel A. Miscavige, Esquire
Mylotte, David & Fitzpatrick
67 North Church Street
Hazleton, PA 18201
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
May 3, 1999
99 -544
Re: Conflict; Public Official /Employee; Borough Council Member; Municipal Authority
Member; Dissolution of Authority; Authority Employee; Immediate Family
Member.
Dear Mr. Miscavige:
This responds to your letters of March 25, 1999 and April 1, 1999 by which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 gt 2gg., presents any prohibition or restrictions upon a Borough Council
Member as to the proposed dissolution of a Municipal Authority, where the Borough
Council Member's spouse is employed by the Authority, or where the Borough Council
Member simultaneously serves as a Member of the Authority and himself receives
compensation from that Authority.
Facts: As Solicitor of the Beaver Meadows Municipal Authority (Authority), you
request an advisory from the State Ethics Commission on behalf of three Members of
the Beaver Meadows Borough Council (Borough Council), specifically, Mark Moyer
(Moyer), Andrew Rusnock (Rusnock), and Richard A. Donald (Donald). The issue
which has prompted your request is the anticipated vote by Borough Council as to
whether to dissolve the Authority.
In addition to serving as Members of Borough Council,, Moyer and Rusnock also
serve as Members of the Authori From time to time, Moyer and Rusnock receive
remuneration from the Authority for performing labor and maintenance services on
behalf of the Authority. You state that you realize that this may constitute a
"pecuniary interest" which would preclude them from voting as to the dissolution of
the Authority.
$
Additionally, the spouse qf Borough Council Member Donald is an employee of
the Authority, specifically, Se etary of the Authority. You inquire as to whether 4
Donald would have a conflict of interest as to the dissolution of the Authority based
upon the "pecuniary interest" of his immediate family member.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the
FAX: (717) 787 -0806 S Web Site: www.ethics.state.oa.us • e -mail: ethicsOstate.pa.us
Miscaviae , 99 -544
May 3, 1999
Page 2
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. §51107(10), (1 1).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As Members of the Beaver Meadows Borough Council, Moyer, Rusnock, and
Donald are public officials as that term is defined in the Ethics Act, and hence they are
subject to the provisions of that Act. Likewise, in their capacities as Members of the
Beaver Meadows Municipal Authority, Moyer and Rusnock are public officials subject
to the Ethics Act.
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.
65 Pa.C.S. §1102.
"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.
"Immediate family." A parent, spouse, child, brother
or sister.
Section 1103(j) of the Ethics Act provides as follows:
Miscaviae , 99 -544
May 3, 1999
Page 3
Section 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,
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, )Vllakar 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 applying the elements of Section 1103(a) of the Ethics Act to the facts which
have been submitted, it is clear that Moyer, Rusnock, and Donald would have conflicts
of interest under the Ethics Act if they would use the authority of their public
position(s), or confidential information obtained by being in such position(s), so as to
preserve the existence of the Authority. The bases for such conflicts would be those
which you have identified, respectively: the remuneration which Moyer and Rusnock
receive from the Authority, and the employment by the Authority of Donald's spouse,
who is a member of his "immediate family." Of course, absent some other basis for
Miscaviae 99 -544
May 3, 1999
Page 4
a conflict of interest, action favoring the dissolution of the Authority would not
transgress Section 1103(a) because a private financial detriment, rather than a private
pecuniary benefit, would result.
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 or the Municipality Authorities Act of 1945.
Conclusion: As Members of the Beaver Meadows Borough Council (Borough
Council), Mark Moyer (Moyer), Andrew Rusnock (Rusnock), and Richard A. Donald
(Donald) are public officials subject to the provisions of the Public Official and
Employee Ethics Act (Ethics Act), 65 Pa.C.S. §1101 g# seq. Likewise, as Members
of the Beaver Meadows Municipal Authority (Authority), Moyer and Rusnock are public
officials subject to the Ethics Act. Donald's spouse, who is employed as the Secretary
of the Authority, is a member of his "immediate family." In the matter of the proposed
dissolution of the Authority, given the remuneration which Moyer and Rusnock receive
from the Authority, and the employment by the Authority of Donald's spouse, Moyer,
Rusnock, and Donald would each have a conflict of interest under the Ethics Act as
to using the authority of such public position(s), or confidential information obtained
by being in such position(s), so as to preserve the existence of the Authority. Absent
some other basis for a conflict of interest, action favoring the dissolution of the
Authority would not transgress Section 1103(a) because a private financial detriment,
rather than a private pecuniary benefit, would result. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1 107(1 1), 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
forma/ 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.
SyrfF rely, or
incent J. Dopko
Chief Counsel