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HomeMy WebLinkAbout92-553Mr. J. Regis. Carroll 215 Lookout Avenue Charleroi, PA 15022 Dear Mr. Carroll: STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 1 71 06 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 4, 1992 92 -553 Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office or Confidential Information, Voting, Immediate Family, Spouse, Lawsuit. This responds to your letter of January 27, 1992, 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 member and president of a borough council with regard to a law suit brought by this public official and his wife against the borough. Facts: Noting a prior telephone conversation with Assistant Counsel for this Commission, you now seek a formal advisory from this Commission. You are a Member and President of the Charleroi Borough Council. You are also named as a Plaintiff in a law suit brought against the Borough by you and your wife. You have submitted to the Commission a copy of the Complaint Report filed by your wife with the Charleroi Police Department, pertaining to a fall on a sidewalk on September 2, 1990. You have also submitted copies of a Praecipe for Appearance by Paul A. Tershel, Esquire, and a Complaint filed by you and your wife as Plaintiffs instituting a civil action in the Court of Common Pleas of Washington County, Pennsylvania, docketed to No. 91- 6378, naming •a Mr.. Ralph Greco and the Borough of Charleroi as Defendants, which law suit pertains to the aforesaid fall on a sidewalk. All of the above documents which you have submitted are incorporated herein by reference. You state that there has been some discussion by certain Members of the Borough Council as to whether your remaining as a Member or President of Borough Council would be a - violation of any Eth as Law or the Borough Code, given your above- referenced ::law : suit against the _Borough. 14r. J. Regis Carroll March 4, 1992 Page 2 You state that both your wife's attorney and the Borough Solicitor, Mr. Mark E. Mascara, Esquire, have given you reason to believe that if you follow the Borough Code, do not exercise the authority of your office, abstain from engaging in discussion of the law suit, and abstain, explaining your reasons, if Council would ever have to vote on this issue, there would be no conflict and thus no violation of ethics. You state that in the many times that the Borough has been a party to the same type of legal action, the matters were handled by the insurance company and you . do not recall any action ever being brought before Council for a vote. Based upon all of the above you request an advisory from this Commission. Discussion: It is initially noted that your request for advice may only be addressed within the purview of. the Public Official and Employee Ethics Law. This Commission would not have the express statutory jurisdiction to consider a request for advice as to potential violations of the Borough Code. As a Member and President of the Charleroi Borough Council in Charleroi, Pennsylvania, you are a public official 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 Mr. J. Regis Carroll March 4, 1992 Page 3 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 whicZl 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 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 Mr. J. Regis Carroll March 4, 1992 Page 4 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. 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. . 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. Your spouse is a member of your immediate family as defined in the Ethics Law. It is clear that you would have a conflict of interest on any matter before the Charleroi Borough Council involving the law suit which you and your wife have filed against the Borough, because your participation or vote could have an impact on the law suit which. derivatively could have an impact upon whether you and/or your wife receive an award relative to that law suit. See Krause, Advice 90 -530; Richards, Advice 92 -535. Similarly, you could not access confidential information pertaining to the law suit, such as the Borough's strategy and potential parameters for settlement, because your use of such confidential information would again result in a private pecuniary benefit to you and /or your wife through the law suit. Mr. J. Regis Carroll March 4, 1992 Page 5 In each instance of a conflict of :interest, you would be required to abstain from any participation, of any nature whatsoever, including but not limited, to taking part 'its discussions, voting, lobbying for a particular result, or any other use of the authority of office. in each instande of a conflict of interest, you would further be required to cdMply with the .disclosure requirements of Section 3(j) of the Ethics Law set forth above. However, in answer to your specific inquiry, "tht Ethics La i would not preclude you from holding public office merely because conflicts of interest arise for you. 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 in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the torough Code. Conclusion: As a Member and President of the Charleroi Borough Council in Charleroi, Pennsylvania, you are a public official subject to the provisions of the Ethics Law: You would have a conflict of interest as to any matter where the use of the authority of your office or confidential information received by holding office would result in a private pecuniary benefit for you, any member of your immediate family, or a business with which you or a member of your immediate family is associated. 'ou would specifically have a conflict of interest in any matter before the Borough Council involving the law suit brought by you and your wife against the Borough. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever, and the disclosure requirements of Section 3(j) would have to be observed. You may not access confidential information involving the law suit, including but not limited to confidential information regarding the Borough's- strategy and potential settlement parameters. Lastly the propriety of the proposed conduct has only beeriA 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/ fa $ j_ con1titct in- any other civil or criminal proceeding, providing the requestor- has disclosed trtithf ully " all the material. facts -- and committed the acts compl fined of in reliance of ; the Advice given, Mr. J. Regis Carroll March 4, 1992 Page 6 This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you 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 the Commission within i5 days of the date of this Advice pursuant to 51 Pa. Code $2.12. Sincerely,. v-0,q() Vincent J. Dopko Chief Counsel