HomeMy WebLinkAbout00-585 LeshkoJoseph R. Baranko, Jr., Esquire
Mylotte, David & Fitzpatrick
67 North Church Street
Hazleton, PA 18201
Dear Mr. Baranko:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800- 932 -0936
ADVICE OF COUNSEL
June 19, 2000
00 -585
Re: Conflict; Public Official /Employee; Council Member; Borough; Fire Company;
Lieutenant; Non - Profit Corporation; Vote; Business with which Associated;
Class /Sub -Class Exception; Immediate Family Member; Brother.
This responds to your letter of May 19, 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 rohibition or restrictions upon a borough council
member who serves as a lieutenant of fire company within the borough, with regard to
voting on an ordinance that would allow the fire companies and ambulance services to
recoup certain costs after they provide services.
Facts: You serve as solicitor to the Borough of McAdoo, Schuylkill County,
eennsylvania. The McAdoo Borough Council ( "Council ") consists of seven members. At
the regular monthly meeting of Council held on May 9, 2000, you were requested to
secure an opinion from the State Ethics Commission regarding one of the sitting Council
members.
Presently before Council is the Emergency Rescue Service Ordinance
( "Ordinance "), which, if adopted, would permit the McAdoo Borough's volunteer fire
departments and ambulance services to pursue recovery of the cost of tools, equipment,
wear and tear and cost of specialized training for such and /or replacement of such items
when such organizations perform "services or utilize tools, equipment or materials, for the
cost of such services rendered unto or tools, equipment or materials used for such
Persons or their property." The Ordinance would permit the volunteer organizations to bill
any person for whom or for whose property such services were rendered or such tools,
equipment or material were used and from any insurance carrier or person providing
insurance covering such persons or property."
One of the Council members, Leshko, is a member of the McAdoo Fire Company,
Inc. ( "Fire Company "), a non - profit corporate entity and one of the volunteer fire
companies that would benefit from the Ordinance. Leshko serves as lieutenant with the
Fire Company, as well as one of its trustees. Leshko votes to pay bills incurred by the
Fire Company, but does not receive any compensation as a member, officer or trustee.
FAX: (717) 787 -0806 • Web Site: www.ethicsstate.pa.us • e -mail: ethics@statespa.us
Leshko, 00-585
June 19, 2000
Page 2
Furthermore, Leshko's brother, as a member, officer and trustee of the Fire Company,
does not receive any compensation for his services.
You inquire as to whether Leshko may vote on the Ordinance currently pending
before Council without transgressing Sections 1103(a) and 1103(j) of the Ethics Act. You
have provided an opinion to the Council stating that such voting would not constitute a
conflict of interest because neither Leshko nor his brother will receive a pecuniary benefit.
However, you approached the Borough's association which does not agree with your
opinion on this issue.
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 request 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 McAdoo Borough Council Member, Leshko is a public official as that term is
defined in the Ethics Act, and hence Leshko 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 ublic
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.
Leshko, 00 -585
June 19, 2000
Page 3
"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.
65 Pa.C.S. §1102.
Section 1103(a) of the Ethics Act prohibits a public official/public employee 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 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.
0) 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).
Leshko, 00-585
June 19, 2000
Page 4
In each instance of a conflict, Section 11030) 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.
Having noted the relevant sections of the Ethics Act, your specific inquiry will now
be addressed.
Based upon the facts which have been submitted, it is clear that the Fire
Company, a non -profit corporate entity, is a "business" as that term is defined by the
Ethics Act. The Commission has ruled that a non- profit corporation is encompassed
within the term "business." See, Soltis - Sparano, Order No. 1045 at 31 (Citing,
Confidential Opinion, No. 89- 007McConahv, Opinion No. 96 -006).
Not only is the Fire Company a "business" under the Ethics Act, the Fire Company
is a business with which Leshko is associated, given his position as lieutenant of the Fire
Company. Furthermore, since Leshko's brother is a member of his immediate family, as
that term is defined in the Ethics Act, and is an officer of the Fire Company, the Fire
Company is a business with which a member of Leshko's immediate family is associated.
Pursuant to Section 1103(a) of the Ethics Act, Leshko would have a conflict of
interest as to any matter before the Council where the use of his authority of office or
confidential information received by holding that public position would result in a private
pecuniary benefit for Leshko himself, any member of his immediate family, or any
business which he or a member of his immediate family is associated, including but not
limited to the Fire Company. A conflict would exist as to the Ordinance because it would
allow a business with which Leshko and his brother are associated to recoup certain
costs. The obtainment of such costs would constitute a pecuniary benefit to the Fire
Company.
Your argument that the Council member's vote would not constitute a conflict of
interest because neither Leshko nor his brother receives a pecuniary benefit is not
dispositive. A conflict of interest, as defined in Section 1102 of the Ethics Act, is a use by
a public official or public employee of the authority of office ... for the private pecuniary
benefit of himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
In each instance of a conflict of interest, Leshko would be required to abstain from
participation of any nature and satisfy the disclosure requirements of Section 11030) as
set forth above.
Under Section 1103(a) of the Ethics Act, there are certain uses of office which are
excluded from conflict of interest based upon two exceptions. The first exception relates
to matters which are deminimis, that is, an insignificant economic consequence. Given
the recoupment of costs which would be allowed in the Ordinance, that exception would
not apply.
The second exception applies to official action "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 ... a member of his immediate family
65 Pa.C.S. §1102. In this case, given that the Ordinance would benefit fire
departments and ambulance services, these groups would be the two subclasses. As to
the subclass of fire departments, the exception could only apply if there is more than one
Leshko, 00-585
June 19, 2000
Page 5
fire department affected by the Ordinance and each fire department is affected by the
Ordinance to the same degree.
The issue of whether the subclass would be affected to the same degree is a
factual question which would have to be addressed by some appropriate professional
expert who is qualified to make that factual determination. See, Laser, Opinion No. 93-
002.
Based upon the facts which you have submitted, only general guidance may be
given. Leshko may not participate or vote on the Ordinance as per Section 1103(a) of the
Ethics Act. However, the subclass exception may apply if the Fire Company would be a
member of a subclass of such fire departments and if all the fire departments would be
affected to the same degree as all others of the subclass. Under the facts which you
have submitted, it is impossible to determine with certainty to what extent the Fire
Company would be affected as compared to the other fire departments in the subclass.
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 a McAdoo Borough Council Member, Leshko 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. The McAdoo Fire Company, Inc. is a business as that term is
defined in the Ethics Act. The Fire Company is a business with which Leshko, who
serves as a Fire Company officer, is associated. The Fire Company is also a business
with which Leshko's brother is associated in that he is an officer of the Fire Company.
Under Section 1103(a) of the Ethics Act, Leshko has a conflict and may not participate or
vote on matters for a private pecuniary benefit for himself, a member of his immediate
family or for a business with which he or a member of his immediate family is associated.
Leshko would have a conflict as to participating or voting on the Ordinance which, by
providing for the recovery of costs to fire departments, would allow a pecuniary benefit to
the business with which he is associated. In each instance of a conflict of interest, Leshko
must abstain and satisfy the disclosure requirements of Section 1103(j) as set forth
above. However, Section 1103(a) of the Ethics Act sets forth two exceptions to a conflict
of interest, one of which is the class/subclass exception that applies in instances where
the private pecuniary benefit derived would be to a subclass consisting of an industry,
occupation or other group which includes the public official or .. a member of his
immediate family ...' In this case, the two subclasses are the fire departments and
ambulance services. This exception may only apply to the subclass of fire departments if
the Ordinance would affect more than one fire department and would affect each fire
department to the same degree. The issue of whether the subclass would be affected to
the same degree is a factual question which cannot be determined herein. Lastly, the
propriety of the proposeaCtnduct 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.
Leshko, 00 -585
June 19, 2000
Page 6
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
rely,
Vincent J.'Dopko
Chief Counsel
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