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HomeMy WebLinkAbout00-553 RedmanJohn M. Purcell, Esquire Davis & Davis 107 East Main Street P.O. Box 1163 Uniontown, PA 15401 Re: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL March 28, 2000 00 -553 Conflict; Public Official /Employee; County; Register of Wills; Zoning and Planning Office; Immediate Family Member; Wife; Business With Which Associated; Private Consulting Firm; Partnership. Dear Mr. Purcell: This responds to your letter of February 22, 2000 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 et seq., presents any prohibition or restrictions upon a county register of wills as to forming a private consulting business that will be involved with the county planning and zoning office. Facts: As counsel for Donald D. Redman ( "Redman "), the Register of Wills for Fayette County ( "County "), you request an advisory based upon the following facts. As a former official for the United Mine Workers' of America, Redman gained substantial experience and expertise in all aspects of the mining industry. Redman now wishes to form a partnership with his wife known as D & D Consulting ( "Partnership "), which will provide consulting services to companies involved in mineral extraction in Southwestern Pennsylvania. The proposed work would occasionally involve dealings with the County Zoning and Planning Office. You ask whether Redman, as Register of Wills, would have a conflict as to his work with the County Zoning and Planning Office. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107110), (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.Da.us • e -mail: ethics @state.Da.us Purcell, 00 -553 March 28, 2000 Page 2 As Register of Wills for Fayette County ( "County "), Donald D. Redman ( "Redman ") is a public official as that term is defined in the Ethics Act, and hence Redman is subject to the provisions of that 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. "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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self- employed individual, holding company, joint 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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more Purcell, 00 -553 March 28, 2000 Page 3 than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. §1102. In addition, Sections 1 103(b) and 1 103(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 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. 51103(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. Purcell, 00 -553 March 28, 2000 Page 4 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister, Redman's wife is a member of his immediate family. Furthermore, once the Partnership is formed, it will be a business with which Redman and his wife are associated. Pursuant to Section 1103(a), Redman would be prohibited from using the authority of his office as Register of Wills or confidential information obtained from being in that position for the private pecuniary benefit of himself, his wife, or the Partnership. In each instance of a conflict, Redman would be required to abstain from participation and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. Having established the above principles, your question shall now be addressed. As for whether Redman, as Register of Wills, would have a conflict as to the Partnership's work with the County Planning and Zoning Office, you are advised as follows. Section 1 103(a) of the Ethics .Act does not expressly prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position — or confidential information obtained by being in that position — for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order No. 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, such as the review /selection of its bids or proposals. Gorman, Order No. 1041. Redman would not have a conflict as to the Partnership's involvement with the County Planning and Zoning Office provided that he would not be using the authority of his position as Register of Wills or confidential information obtained by being in that position to advance the business of the Partnership. 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 Register of Wills for Fayette County ( "County "), Donald G. Redman ( "Redman ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Redman's wife is a member of his immediate family. The Partnership which Redman and his wife intend to form will be a business with which he and his wife are associated. Pursuant to Section 1103(a), Redman would be prohibited from using the authority of his office as Register of Wills or confidential information obtained from being in that position for the private pecuniary benefit of himself, his wife, or the Partnership. In each instance Purcell, 00 -553 March 28, 2000 Page 5 of a conflict, Redman would be required to abstain from participation and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. Redman would not have a conflict as to the Partnership's involvement with the County Planning and Zoning Office provided that he would not be using the authority of his position as Register of Wills or confidential information obtained by being in that position to advance the business of the Partnership. 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. Sjnc4rely, Vincent J Dopko Chief Counsel