HomeMy WebLinkAbout91-538 GaaSTATE ETHICS COMMISSION
309 FINANCE BUtLDING
P.O. BOX 11470
HARRISBURG
TELEPHONE (717)0783-1610
NE�
TE
ADVICE OF COUNSEL
May 13, 1991
91 - 538
Mr. William D. Gaa
101. Avenue PA 18336
MatamoraS,
Re:
Official /Employee, President,
Conf lint, Public
'Council, Immediate Family, Spouse, Candidate, Auditor.
Borough
Dear Mr. Gaa: in which you
This responds to your letter of March 25, 1991,
requested advice from the State Ethics Commission. Ethics Law
Issue: Whether the Public Official and Employee
prohibition or restrictions upon a President of
Borou Borough
gh any Council or upon his spouse who is a candidate forvBorough
Auditor, where the President of
rough ch Council t he c treasurer makes up
with the Borough Secretary,
the checks and pays the bills subject to Council's vote
on wh ih
all bills (other than normal and customary ent.
discounts appear) prior to their actual p ym
Facts: As President of the B af ° the
h State Ethics Commission
Pennsylvania you seek the advice
regarding your wife's intended candidacy for the -position of
s em, ou as
Borough Auditor. ro h Council l and the Borough -Sec etary d cosign s
pays
President of the Borouq
the vouchers and then the a to pay. all t ecbi]1s prior bills. However, the Co uncil votes
to their actual payments, with the exception of those- nodrmdl and
bills on which discounts appear.
customary monthly .. why-your- wife
.
ccircumstances, you ask whether there is-any reason - w y � fir.
'should not be able to run for the office -of -Boroeg
Discussion: As resident ^of _the are and Bo i- o you offil for thehBt�e
of Matamoras, Pennsylvania you ar�hence,- are subject-to the
is defined under the - Ethics Law, ° th e
provisions of that law. Your wife a -candidate for p
office is subject to= Sections -4 an° ` d Of the Ethics LaW regardif
.requirements for filing-Statement
)ir. William D. Gala
Page 2
elected, she would become a public official subject to Section 3
(a) as well as the other provisions of the Ethics Law.
Section 3(a) of the Ethics Law provides:
Sectio 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
following terms are defined in the Ethics Law as
the
fgliows:
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 which includes the
.public official or public employee, a member
or 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.
In addition, Sections 3(b) and 3(c) of the Ethics Law
p1oyide, in part that no person shall offer to a public
o € .cia . /emplayee anything of monetary value and no ptbitc
official/employee . shall solicitor or .accept any thing of Mon+etaiy
Mr. William D. Gaa
Page 3
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 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 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 memberw0Nollifis
abstained shall be permitted to vote to brelik
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 as well ,s file a written Memorandum to that
effect with `the person recording the minutes or supervisor.
In the event_ that the .required' abstention in the
inability of the governmental body to take action because a
Mr. William D. Gaa
Page 4
'majority is unattainable due to the abstention(s), then in that
event participation is permissible provided the disclosure
requirements noted above are followed.
Turning to your specific inquiry, you ask whether under the
above factual circumstances, there is any reason why your wife
should not be able to run for the office of Borough Auditor. It
is initially noted that your inquiry can only be addressed under
the Ethics Law;. the applicability of any other statute, code,
ordinance, regulation or other code of conduct other than the
Ethics Law is not considered.. in that _.they do not involve an
interpretation of the Ethics Law.
The Ethics Law does not address the issue of whether the
spouse of a President of Borough Council may run for the office
of Borough Auditor. Therefore, there is no specific prohibition
in the Ethics Law which would preclude your wife from maintaining
such a. candidacy.
Although your inquiry did not directly ask the question of
what restrictions would apply to you and your wife should she be
elected, as regards the borough voucher system, that question is
implicitly included in your inquiry.
You are presently . a public official as defined under the
Ethics Law, and if elected, your wife would also be such a public
official subject to the restrictions of the Ethics Law.. As a
public official, you must remove yourself from any aspect of .
participation in matters where the use of your authority of
office or confidential information which you have obtained
through holding office, would result in a private financial gain,
either for you, for a member of your immediate family such as
your spouse, or for a business with which you or a member of your .
immediate family is associated. If your wife is elected to the
office of Borough Auditor, she, -too,. would be subject to these
restrictions of the Ethics Law from her perspective as a public
official. ,The prohibited participation would not only include
voting but would extend to other forms of official participation
such as participating in negotiations or discussions regarding
sudh matters. .See, Van Rensler, Opinion 90 -017; Dettra, Opinion
89 -021; Fulton, . Advice 91 =510.
Where such a conflict of interest exists, the publi
official must not only abstain, but under the provisions of.:tte
EthicsL Law'` set forth above, he must also publicly announce thei
natur€s= of = his interest and also file a written memorandum with -
the 1)e receid'ing the minutes, disclosing .the nature of his
interest.
Mr. William D. Gaa
Page 5
With regard to the specific issue of your cosigning vouchers
with the Borough Secretary, such a procedure would be subject to
the reasoning set forth in Krushinski, Order 168, under former
Act 170 of 1978. Although Krushinski would not be controlling
because it is a decision under the former Act, the reasoning of
the Commission in that case continues to be applied under present
Act 9 of 1989. In Krushinski, the Commission held that a school
director should not have participated in the board's decision -
making process leading to and including voting to an annual
contract to a department store where he was employed as a
manager, and as such, was also responsible for preparing and
submitting bids for the department store. The Commission further
held that the school director could not participate in the school
board's discretionary =payments to that department store.
However, the school director could participate with regard to
bills which were pre- ordained or pre -set by the general contract
and were of a routine nature not subject to the school director's
or the board's discretion and not subject to dispute or
adjustment. See also, Elder, Advice 90 -547.
Applying this reasoning to your situation, in instances
where the Borough's awarding of a contract and /or payment of a
bill would result in a private financial gain for you, a member
of your 'immediate family, and /or a business with which you or a
member of your immediate family is associated, you should not
participate or vote. Furthermore, you should not cosign the
.vouchers with regard to such bills if the bills do not fall under
the Krushinski principles as routine, pre -set, uncontested and
undisputed bills which do not require the exercise of discretion
by you or the Borough Council and are not subject to dispute or
adjustment. If a conflict exists, yeu must abstain and comply
with the requirements of Section 3(j) of the Ethics Law set
forth above.
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 Borough Code.
Conclusion: As President of the Borough Council for Matamoras,
Pennsylvania, you are a public official subject to the provisions
of the Ethics Law. As a candidate for Borough Auditor, your wife
is subject to the requirements of Sections 4 and 5 of the Ethics
Law regarding the filling of Statements of Financial.lnterests.
If elected, your wife would also become a pub144 officiAl subject
to Section 3(a) as well as the other provisions of the Ethics
Law. The Ethics Law would not preclude your wife as . the spouse
of tho President of Borough Council from seeking and holding the
Mr. William D. Gaa
Page 6
office of Borough Auditor. As a public o fficial, you, and your
wife. if elected, are subject to the restrictions that a public
official may not use the authority of office or confidential
information obtained through holding public . office to obtain a
private financial gain either for himself, a member of his
immediate family, or for a business with which he or a member of
his immediate family is associated. Where a conflict of .
interest exists, the public official must abstain from
participation in the matter, and must publicly announce the
nature of his interest as well as file a written memorandum with .
the secretary recording the minutes disclosing the nature of his
interest. Where the payment of Borough bills would result in a
private financial gain either to you, a member of your .immediate
family, or a .business with which you or a member of your .
immediate family is associated, then you should not participate
or vote or cosign the vouchers for such payments unless they are
of a routine nature; not subject to your discretion or the
Council's discretion; and not subject to dispute or adjustment,
but pre -set, non- discretionary and non- contested. 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 request that the full
Commission review this Advice. A personal appearance before the
Commission will be scheduled and a formal Opinion from the
Commission will be issued. Any such appeal must be in writing
and must be received at_ Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
Sincerely,
Vincent 7. Dopkcp,
Chief Counsel