HomeMy WebLinkAbout94-549 NavishDear Ms. Navish:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
Pb. BOX 11470
HAIRISBURC, PA 17108-1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL-
April 12, 1994
Eileen M. Navish
Borough of East Pittsburgh
516 Bessemer Avenue
East Pittsburgh, PA 15112 94 - 549
Re: Conflict, Public Official /Employee, Borough Secretary, Private
Business or Employment, Certified Public Accountant, Use of
Authority of Office or Confidential Information, Receipt of
Private Office Space from Borough.
This responds to your letter of March 13, 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 a Borough Secretary
from receiving office space at no cost from the Borough for use in
her private business.
Facts: In February, 1994 you were appointed by the Borough Council
of East Pittsburgh to the position of Borough Secretary. The
position requires 20 hours per week at a salary of $13,000.00 per
year. At this time, the Borough is declared financially distressed
and is in a recovery plan under Act 47. The Borough is not able to
provide you with financial compensation for overtime you provide,
nor is it able to provide you with a benefits package of health
insurance, pension plan, etc., that was provided to a former
Borough Secretary, since retired. In addition, the Borough does
not have a computer and is not budgeted to buy a computer. You are
using your own computer equipment to type letters, minutes, labels,
'etc.
You are a self - employed Certified Public Accountant licensed
to practice in the Commonwealth of Pennsylvania. You have
requested office space from Council on a no - fee or no- rent basis
The fair market value if the space you requested is $'200.00 per
month.
Navish, Eileen M., 94 -549
April 12, 1994
Page 2
•
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority bf his office or emplayment or any
confidential information received through his
holding public office or employment for the
private benefit of himself, a member
of his immediate family or "a business with
which he or a member of his immediate family
his aa`soeinted . "Conflict" or "conflict of
'iIl er4 t" 'floes not include an action having a
The Borough is in a building that was a school. The East
Pittsburgh's Secretary's office is formerly a large classroom. One
half of this room can handle comfortably Borough business. You'
have asked Council if you could, partition the office thereby
creating two offices. There will be an entrance to each office.
Council has agreed to this arrangement, however, it was suggested
that you contact the State Ethics Commission before Council makes
its final decision.
Based upon the above, you request an advisory from the State
Ethics Commission.
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
burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 P §5407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As a Secretary for the Borough of East Pittsburgh, you. are a
public employee 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.
Navish, Eileen M. 94 -549
April 12, 1994
Page 3
de min&mis economic iiiapact or which affect* tb
the , same. degree a class consisting of the
general public or a subclas$ consisting of an
industry, occupation: or other group which
includes the public official or public
employee,.a, member of hit 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 ekercise of
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
"Business with which he is associated."
Any business in . which the person br a melt
of the person's immediate family is a
director, officer, owner, employee or . has a
financial interest.
In addition, Sections 3(b) and 3(c) bf 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, br 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
been 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 intere §t, as a
public record in a. written memorandum filed
with the person responsible f6r redardifig the
minutes of the meeting at wlidh the tote • is
Navish, Eileen M., 94 -549
April 12, 1994
Page 4
taken, pro'v'ided that whenever a governing body
would be _uffabk8 to flake 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.
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 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
ina jority is unattainable due to the abstention (s) from conflict
under the Ethics Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. See, Mlakar, Advice 91- 523 -S.
Initially, prior precedent on the general issue of office for
business or personnel matters will be reviewed. Although, it is
noted that some prior precedent has been decided under Act 170 of
1978 which has been amended by Act 9 of 1989, a review warranted
as it relates to the underlying analysis of this issue.
In McClatchv, 130, the allegation concerned whether a
Representative used the House of Representatives postage meter and
stationery for personal br political purposes regarding mailing
letters to; constituents for the purpose of soliciting support
for the candidacy of another individual seeking public office.
There was violation of Section 3(a) of the Ethics Act because the
mailing was designed to solicit political support for a colleague's
re- election and as such could not be considered within the ambit of
"official business ". It was specifically found that the mailing
was personal in nature rather than legitimate legislative business
and directed that the activity should not reoccur.
In Dorrance, Order 456, the Commission held that there was a
Navish, Eileen M., 94 -549 -
April 12, 1994
Page 5
violation of the Ethics 'Law where an attorney from the ' Department
of Public Welfare used:faci materials and personnel of his
governmental employer to complete legal work as a private attorney.
In that case, the financial gain received by the public employee
was the cost of the expenditures for materials, - postage, and
secretarial labor to process his private legal work. -
In Rieaer, Order 680, the allegation regarded a Representative
who used Commonwealth stationery, mailing systems and postage to
send letters to an executive committee in his district encouraging
them to support his re- election . Based upon findings of the use
of Commonwealth House of Representatives letterhead, stationery,
meter postage, equipment and staff t� •send out re- election
materials, a violation of Section 3(a) of the Ethics Act as to such
activities was found as well as a violation of Section 3(a) of the
Ethics Act regarding the use of his district office for re- election
campaign purposes.
In Freind, Order 800, a Member of the House of Representatives
violated the Ethics Law when he used, his district office and
facilities including office space, telephone, utilities, supplies
and postage for the purpose of conducting and aiding his private
practice of law. The public official was directed to separate his
private business location from his legislative district office.
In Street, Opinion 81 -005, the legislative district office of
a State Senator could not be used as a contact point by an
independent group seeking to raise funds for his personal use
because such would be compensation other than provided by law and
contrary to Section 3(a) of the Ethics Act. Since the activities
in the case were undertaken by an independent group without the
authorization of the State Senator, no further action was taken
provided such activity terminated and did not reoccur.
Finally, in Cessar, Opinion .82 -002, the propriety of a
Representative conducting re-election campaign activities out of
his own district office was considered. The issue both under
Section 3(a) of the Ethics Act and under the Preamble in Section 1
were analogous. Under Section 3(a), theuse the district office
for campaign purposes to obtain funds. or capital or otherwise
increase resources could be considered a: financial gain through.use
of office contrary to Section 3(a) of the Ethics Act,
Thereafter, the question of whether the creation of an
accounting system which would pay for the proposed' use of the
office for campaign purposes would be permissible under the Ethics
Act was considered.. Such a payment would not dispel an appearance
of conflict under the Act The Representative was required' to'
separate his role: as an incumbent serving his constituents and his
role_ as a candidate serving his personal interests in- campaigning'
Nsvish, Eileen M., 94-549
April 12, 1994
Page 6
for re-election.
As to the above adjudications wherein consideration was given
to perceptions or appearances of conflict, such are not followed to
the extent that they rely upon the appearance language in the
Preamble of Act 170 which was deleted by Act 9 of 1989. Further,
although some of the above decisions were decided under Act 170 of
.1378, the undeilying rationale regarding the demarcation between
the Use of public office for its stated governmental function as
oppOSed to tse for private/business/political purposes has equal
appildation to Act 9 of 1929. As was noted in Pancoe, Opinion
8-9-0
In applying the above provisions of the Ethics
Law to ,the instant matter, we note that Section
3(a) of the Ethics Law does not prohibit public
officials/employees from outside business
activities; however, the public official/employee
• may not use the authority of office for the
advancement of his own personal financial gain.
Thus, although you are not prohibited under Section
3(a) of the Ethics Law from entering into a
partnership which would provide consulting or
marketing services, you could not perform your
private business using Commonwealth facilities or
personnel. In particular you could not use the
telephone,- postage, staff, equipment, research
materials, personnel or any other printed/drafted
material as a means, in whole or part, to carryout
your private business activities. In'addition, you
could not during Commonwealth working hours,
solicit members of the General Assembly or others
to promote or conduct your marketing and consulting
business. Subject to the qualifications noted
above., Section 3(a) of the Ethics Law would not
prohibit you from entering into the private
partnership arrangement. Id. at 4
In a public official/employee has his first loyalty
to the public office rather than his private personal interests.
Crisci, Opinion 89-013.
In applying the provisions of Section 3(&) of the Ethics Law
quoted above to the instant 'Matter', your request for.office space
at no cost and subsequent provision for such space by the Borough
business or personal use would be prohibited by the Ethics Law.
Section 3(a) of the Ethics Law in defining conflict requires that
there be a use of the authority of office to obtain a private
pecuniary benefit for the public official/employee, a member of his
immediate family or business with which he or a member of his
Navish, Eileen M., 94 -549
April 12, 1994
Page 7
such
immediate family is associated. Iin this case, the r'eque'st by you
for the office space would be through the "authority of office" as
defined in the Ethics Law. Second, the unambiguous language of the
definition of conflict cannot be disregarded in an attempt to
pursue what might be perceived to be the spirit of the ftlaicS Law.
In addition, the element of the private pecuniary benefit exists
because you have stated that you would not be paying for the office
space but that, it would be provided to you by the Borough, 'With
the necessary elements of the use of the authority of office and
private pecuniary benefit, such activity would be prohibited under
Section 3(a) of the Ethics Law.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability of any otter 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 Secretary for the Borough of East Pittsburgh, you
are a public employee subject to the provisions of the Ethics Law,
Under the Ethics Law, you would be prohibited from requesting and
receiving office space for your private business from the Borough
at no cost as such would be the use of authority of office for the
receipt of a private pecuniary benefit. 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 requester 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
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 fifteen (15) dugs Of the date of this
Navish, Eileen X., 94 -549
April 12, 1994
Page 8
Advice pursuant to 51 PaCode §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).
v►(1
Vincent Dopko.
Chief Counsel