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HomeMy WebLinkAbout94-534 MilitoGeorge E. Conroy Richard A. Milito 2509 Wilson Street Natrona Heights, PA 15065 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 30, 1994 94 -534 Re: Conflict, Public Official /Employee Township Commissioners, Lawsuit Against Board of Commissioners; Contributions by Citizens to Legal Defense Fund; Use of Funds for Attorneys' Fees. Dear Mr. Conroy and Mr. Milito: This responds to your letter of February 10, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon two Township Commissioners from using funds contributed by citizens to pay attorneys' fees incurred as a result of litigation instituted against the other Commissioners. Facts: You were elected to four year terms as Harrison Township Commissioners in January, 1992. In December, 1993, a majority of the Board of Commissioners voted to remove you from your positions as Commissioners and appointed replacements. You subsequently filed a mandamus action against the Board of Commissioners seeking reinstatement to your positions. On January. 3, 1994, Allegheny County Court of Common Pleas ruled in your favor and issued an order directing you to be reinstated. This decision was not appealed. In the course of this litigation, you incurred legal fees in the amount of $2,300.00. Individuals who support you as Commissioners have created a legal defense fund to receive contributions to help pay the legal costs. You believe that such contributions are similar to political contributions and should be permitted. To date, funds are being contributed; however, no disbursement has yet been made. Conroy, George E.; t" lito,.E d rd;:b , ::& March 30, 1994 Page 2 Accordingly, you request an advisory -from the State Ethics Commission as to whether under the Ethics_Law, it is permissible to use these funds for the legal expenses you have incurred. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(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 bUZden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §S407(10), (11). An advisory only affdrds a defense to the extent the requestor has tiut1tfully all of the material facts. As Commissioners for Harrison Township, you are public officials as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in • `conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: 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 of his immediate family or a business with which he or a member of his immediate family is associated. Conroy, George E.; WIlto March 30, 1994 Page 3 "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. "Gift." Anything which is received without consideration of 'equal or greater value. "Gift" shall not include a political contribution otherwise reported as required by law or a commercially reasonable loan made in the ordinary course of business. In addition, Sections 3(b) and 3(c)'of the Ethics Law 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; 4r judgement of the public official /employee would be influenced thereby. 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 gist • vould...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 mikes the majority or other legally required vote' o€ approtal unattainable, then such members shall be permitted to vote if disclosures are Made as otherwise provided herein. In the ease.,of a three- member governing body of a political subdivision, where one member .. as : abatai.ned Conroy, George E.; Mil-ito, ni 5L . , March 30, 1994 Page 4 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. If a conflict exists, Section 3(j) requires the public official /employee to .abstain and to publicly disclose the abstention and reasons for same, both orally and by filing 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 c onfli ct ft under the Ethics Law, then in that event participation permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Section 5. Statement of Financial Interests (a) The statement of financial interests filed pursuant to this act shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information: and belief of .the person required to file and shall be signed under oath or equivalent affirmation. (b) The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate of $200 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or f ri,end when the circumstances make it clear that the motivation for the action aio a personal or family However, for the purposes of this Como , George E.; M4 .itb, Thie a . ,. 4.r :-.g34 - March 30, 1994 Page 5 4 47 Subsection, the term "friend" shall : not include a registered .:lobbyist or an employee of a registered lobbyist. This - paragraph shall; not be applied retroactively. 65. P.S. §405(a),(b)(6). • In applying the .Ethics Law to this case, it is clear that the receipt of any money'from the defense fund would constitute a gift under the Ethics ;Law. The Ethics Law does not preclude the receipt of a gift by a public official. See Cooper, Opinion 92 -009, Wolfcrancr, Opinion 89 -028 and Gialiotti, Opinion 89 -020. Since the receipt of the funds would be a -gift, as public officials, you could lie required to list the gifts on your Statements of Financial Interests. As to whether you,•as public officials, would have a conflict if you would have official involvement with the, donors to the fund, the Commission held in Wolfcrancr, supra, that a contribution to a candidate for office, in and of itself, without any additional facts would not create a per se conflict if the individual were elected to that office. 'However, there have been various cases before this Commission,- where it was held =that the Ethics Law was violated based upon particular facts where public officials have accepted gifts from individuals and subsequently acted upon matters which the donors had pending before the governunental body. See, Volpe, Order 579 -R; Smith, Order 578 .R; Feller, Order 576-R. If at some point the contributors would have contracts or other matters pending before your governmental body, you, at that time, should seek additional advice from this Commission as t� whether a conflict would exist under such circumstances. 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 Township Code. Conclusion: As Commissioners for Harrison Township; you are public officials subject to the provisions - af F:thibs Law: Disbursements from a defense .fund constitute gifts to you which mist be reported on the. Statements of Financial Interests. The payment of expense's from a fund established by p rivate donations or solicitations from individuals does not create a conflict of interest per se. However, _if a 'donor would sub`segtently have a matter before the Township, further advice should be requested from this Commission. Lastly, the propriety of the prose coilduct has only been addressed under the - Ethics -Law-,. Conroy, George E. March 30, 1994 Page 6 ° :1* ; Milito "R7 i i' tr ' 1 , 94 -534 Pursuant to 'Section 7(11), this Advice is 'a Co complete n defense in any enforcement proceeding initiated by the evidence of good faith disclosed truthfully e has criminal proceeding, . providing the qu 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 y t ou-disagree with is Advice or if you have any reason to challenge same, you may a ppeal 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. An y Such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this a Adtiice ursuartt to 51 Pa.Code §13.2(h). The may be received P at the Cal mission by hand delivery, United States mail, delivery *QWee, tir by FA transmission (717- 787 - 0806). ncerely, Vincent . Dopko ehief Counsel