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Home My WebLink About97-527 StartRichard F. Start; Esquire Damian & Amato, P.C. Three Gateway Center 15th Floor, North Wing Pittsburgh, PA 15222 Dear Mr. Start: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 1147.0 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 19, 1997 97 -527 Re: Conflict, Public Official /Employee, Borough, Council Members, Vote, Appointment, Authority Board, Employees. This responds to your letters of January 10, 1997 and January 16, 1997 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 Borough Council Members who are employees of a Joint Authority with regard to making appointments to the Joint Authority Board. Facts: As Solicitor for Leetsdale Borough in Allegheny County, you request an advisory on behalf of two Leetsdale Borough Council Members who are also full -time employees of a Joint Authority. You ask whether a conflict of interest exists for these two Council Members in voting to fill a vacancy on the Authority Board. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §§407(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.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Members of the Leetsdale Borough Council are public officials as that term is defined under the Ethics Law, and hence they are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Start%Leetsdale BQrouoh, 97 -527 February 19, 1997 Page 2 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 tfirough 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. "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. 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, 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 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 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 Start /Leetsdale Borough, 97 -527 February 19, 1997 Page 3 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. 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 majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is perrnissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, 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. Generally, these Borough Council Members on whose behalf you have inquired would have a conflict of interest in Authority matters coming before Borough Council if such matters would have a financial impact upon them. Such a Borough Council Member would specifically have a conflict of interest with regard to appointing an Authority Member because the Authority Member would, in effect, be one of his employers. See, Summerville, Advice No. 95-509; Mutschler, Advice No. 93 -613. In analogous situations, the Commission has noted that official action where such a circular relationship exists presents a conflict of interest. See, Bassi, Opinion No. 86- 007-R; Woodring, Opinion No. 90 -001. In each instance of a conflict of interest, the public official is required to abstain fully and to satisfy the disclosure requirements of Section 3:(j) as 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 or .the Municipality Authorities .Act of 1945. . F tart /Leetsdale Borough, 97 -527 ebruary 19, 1997 - Page 4 ;Eonclusion: The Members of the Leetsdale Borough Council on whose behalf you have inquired are public officials subject to the provisions of the Ethics Law. Each of these Borough Council Members would have a conflict of interest with regard to appointing Member(s) of the Board of the Joint Authority where he is employed since he would, in effect, be appointing one of his employers. In each instance of a co,nfGct of interest, the Borough Council Member would be required to abstain fully and to satisfy the disclosure requirements of Section 3(j) as set forth above. 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 even 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). 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. incerely, orlio Vincent J. 'Dopko Chief Counsel