The URL can be used to link to this page

Home My WebLink About92-557Dear Mr. Owens: You state that it is conflict of interest under receive any financial gain. since your wife works in the of interest. Based upon all from this Commission. STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 12, 1992 92 -557 Mr. George W. Owens R.D. 4, Box 37 Clearfield, PA 16830 Re: Conflict, Public Official /Employee, School Director, Former Tax Collector, Owner of Tax Office Building and Equipment Immediate Family, Spouse Employed by Tax Collector. This responds to your letter of February 6, 1992 in axhich you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a school director and former tax collector, who owns and provides free of rental the tax office building and equipment to his sister -in -law as the present tax collector, where the school director's spouse occasionally works for the tax collector. Facts: As a Member of the Board of Directors of the Clearfield Area School District, you seek the advice of the State Ethics Commission. You were formerly an elected Tax Collector and also collected 511 taxes by appointment. You resigned near the end of your seventh term to be sworn in as a School Director. Your former tax office employee, your sister -in -law, was elected in 1990 to the Tax Collector office. She has a full time employee, but also occasionally employs your wife for a total of about sixty hours per year, for which you state your wife receives minimal ('de minimis") or no compensation. You own the tax office building and equipment, but you do not charge rental for the facility or the equipment. your belief that you do not have a these circumstances since you do not However, it has been alluded that office, you could have such a conflict of the above, you request an advisory Discussion: As a School Director for the Clearfield Area School District, you are a public official as that term is defined under Mr:. George IC, Owens March 11, 1992 Page 2 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. "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 Mr. George W. Owens March. 12, 1992 Page 3 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 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 abst from voting as a result of a conflict of interest, and the remaining two meihbers 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 teoordLng the minutes or supervisor. Mr. George W. Owens March 12, 1992 Page 4 In applying the above provisions of the Ethics Law to the facts which you have. submitted, Section 3(a) of the Ethics Law prohibits a .public official /public employee 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, but your sister -in -law would not be a member of your immediate family as that term is defined in the Ethics Law. It is noted that you are no longer the elected Tax Collector. Rather, you are a School Director. Under the facts which you have submitted, based upon your affirmative representations and assurances to this Commission that you would be acting in your private capacity, in providing the tax office building and office equipment free of charge to the present tax collector, your sister - in -law, and that in so doing, you would not receive any financial gain whatsoever, it appears that you would not be using the authority of office for a prohibited private pecuniary benefit. Therefore, the above circumstances would not constitute a conflict of interest for you under the Ethics Law. The fact that your wife occasionally works for minimal or no compensation in the Tax Collector's office would not alter this conclusion. However, this Advice is based upon the_assumption that there are no improper understandings which would contravene Sections 3(b) and /or 3(c) of the Ethics Law 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 respective municipal code or the School Code. Conclusion: As a School Director for. the Clearfield Area School District, you are a public official subject to the provisions of the Ethics Law. You would not have a conflict of interest in providing the tax office building and office equipment free of rental to the present Tax Collector, your sister -in -law, nor would the fact that your spouse occasionally works for minimal or no compensation for the Tax Collector constitute a conflict of interest for you. This Advice expressly assumes that there are no improper understandings which would contravene Sections 3 (b) and /or 3(c) of the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. George W. Owens March 12, 1992 Page 5 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. such. 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 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 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. incerely, incent . Dopko Chief Counsel