HomeMy WebLinkAbout00-513 CavenderMatthew L. Kovacik, Esq.
Blairsville Borough Solicitor
966 Perry Highway
Pittsburgh, PA 15237
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
February 10, 2000
Re: Conflict; Public Official /Employee; Councilman; Borough; Member; Municipal
Authority; Vote; Appointment.
Dear Mr. Kovacik:
This responds to Mr. Cavender's letter of January 7, 2000 by which he
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 pa seq., presents any prohibition or restrictions upon a borough
councilman as to voting to appoint a person to the borough municipal authority where
the councilman is a member of the authority.
Facts: J. Scott Cavender ( "Cavender ") has recently been elected Councilman
for the Borough of Blairsville ( "Borough "). He currently holds the appointed position
of Member of the Blairsville Municipal Authority ( "Authority ").
When the Borough Council held its reorganization meeting, Cavender abstained
from voting for the appointment of a Member to the Authority because he felt that
there was an inherent conflict in appointing a fellow Board Member when he is a Board
Member. Members of Borough Council voiced their displeasure over Cavender's
abstention, stating that he was not properly representing the voters in his District by
abstaining from voting for the appointment.
Cavender requests an advisory as to whether, as a Borough Councilman and an
Authority Member, he may vote to appoint someone to the Borough Authority.
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.
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
00 -513
Kovacik, 00 -513
February 10, 2000
Page 2
As a Councilman for the Borough of Blairsville and a Member of the Blairsville
Municipal Authority, Cavender is a public official as that term is defined in the Ethics
Act, and hence, Cavender is subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
65 Pa.C.S. §1103(a).
65 Pa.C.S. §1102.
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
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 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.
In addition, 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:
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
Kovacik 00 -513
February 10, 2000
Page 3
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, 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.
Pursuant to Section 1103(a) of the Ethics Act, Cavender would have a conflict
of interest as to Authority matters before Borough Council if such matters would have
a financial impact upon him. Based upon his specific factual representations, and
assuming that the individual subject to appointment by Council would not be a member
of his immediate family or someone with whom he would have a business relationship,
it would not appear that Cavender's participation in voting to appoint such individual
would result in a financial gain to him. Absent a financial gain, Cavender would not
have a conflict of interest and would not transgress Section 1103(a) of the Ethics Act
by voting to appoint a person to the Authority.
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
Kovanik 00 -513
February 10, 2000
Page 4
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the respective municipal code.
Conclusion: As a Councilman for the Borough of Blairsville and a Member of the
Blairsville Municipal Authority, Cavender is a public official subject to the provisions
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et
seg. In Cavender's capacity as Councilman, he would have a conflict of interest as to
Authority matters before Borough Council if such matters would have a financial
impact upon him. Based upon his specific factual representations, and assuming that
the individual subject to appointment by Council would not be a member of his
immediate family or someone with whom he would have a business relationship, it
would not appear that Cavender's participation in voting to appoint such individual
would result in a financial gain to him. Absent a financial gain, Cavender would not
have a conflict of interest and would not transgress Section 1103(a) of the Ethics Act
by voting to appoint a person to the Authority. 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 1. 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
cerely,
, vw�
Vincent J. opko
Chief Counsel