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HomeMy WebLinkAbout92-563STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -16f0 ADVICE OF COUNSEL April 1, 1992 92 -563 1 Re: Conflict, Public Official /Employee, Borough Council Member, Salary Increases. This responds to your letter of February 25, Q 1992, in which you requested confidential advice from the State Ethics" Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough council member with regard to voting upon and receiving' a salary increase during his term of office. Facts: As a Borough Council Member for Borough A, Pennsylvania, you request an advisory from this Commission concerning your prospective conduct of voting upon and receiving a salary increase during your term of office. You cite 53 P.S. 546001 as providing, in pertinent part: Councilmen may receive compensation to be fixed by ordinance at any time and from time to time as follows: In boroughs with a population of less than five thousand, a maximum of fifteen hundred dollars ($1500) a year; . . . 53 P.S. S46001. You state the above quoted provision to read as stated by Act 67 of 1985. You advise this Commission that according to available census, Borough A has a population of 2,075 was amended the latest residents. You quote the prior language of Section 1001 of the Borough Code as providing, inter alia, for compensation to councilmen in the maximum amount of $50 per month where the population is 1,500 Confidential Advice 92 -563 April 1, 1992 Page 2 or more but less than 3,000 Borough A currently has an ordinance in effect that pays its Council Members compensation at the rate of $50 per month. The Borough Council for Borough A intends to consider the adoption of an ordinance that would increase the compensation to its Council Members to $75 per month. Therefore, you request an advisory concerning your duties, obligations, and the restrictions imposed by the Ethics Law upon you with regard to this proposed action. You pose the following specific inquiries: (1) Whether you are permitted to receive compensation at the increased rate, assuming the proposed ordinance is adopted? (2) Whether you are permitted to vote in favor of the adoption of the proposed ordinance increasing the compensation, and if you are not permitted to so vote, what reason must be expressed for your abstention? and (3) If you are not permitted to vote in favor of the adoption of the proposed ordinance, under what scenario could such an ordinance be adopted? Noting that the Borough Council shall take action on the proposed ordinance at its meeting scheduled for March 5, 1992, you request an expedited confidential advisory. Discussion: As a Borough Council Member for Borough A, 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 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 Confidential Advice 92 -563 April 1, 1992 Page 3 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" "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 these7 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 Confidential Advice 92 -563 Aril 1-, 1992 Page 4 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 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. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yacobet v. State Ethics Commission, Pa. Commw. , 531 A.2d 53 (1987). Thus, under this provision, a public official may not use his public position to secure any - financial gain _for himself or his 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 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. Confidential Advice 92 -563 April 1, 1992 Page 5 immediate family unlessit is provided for by law. Domalakes, Opinion 85-010; Huff, Opinion 84 -015. In the instant situation, the , question .of the propriety of a borough council member, whether in mid -term or recently re- elected in receiving increases in salary.. relates: to Section 3(a) of the Ethics Law quoted above concerning the use of public office by a public official as to a financial gain or benefit which is not provided for in law. The salary increases in this case for the council members of. Borough A are within the maximum that is allowable for the given population density of the Borough. It must be restated that Section 3 prohibits conduct where public officials use their office to obtain some type of gain or personal benefit which is not provided for in law, Domalakes, Opinion 85- 010, Huff, Opinion 84 -015; a receipt of a salary by an official which is provided for in law does not transgress Section 3(a) of the Ethics Law. Therefore, under Section 3(a) of the Ethics Law, there is no prohibition upon you as a Member of the Borough Council from receiving an increase in salary from the . amount- of $50 per month to $75 per month since the salary of $75 per month which would yield $900 on an annual basis is below the $1,500 amount allowed for the Council Members. Thus, in response to your first specific inquiry and the first part of your second specific inquiry, the Ethics Law would not preclude you from voting in favor of the adoption of the proposed ordinance increasing your compensation as a Borough Council Member to $75 per month, nor would it preclude you from receiving the increased .,. compensation during your term. Given this conclusion, the second portion of your second., specific inquiry and your third specific .inquiry need 'not be addressed: However, you are cautioned that the propriety of the ,above 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 propriety of the proposed conduct under the Borough Code. Similarly, not addressed in this Advice is the question of whether the receipt of the salary increase is permitted under Article III, 527 of the Pennsylvania Constitution, since the Ethics Commission does not have jurisdiction to interpret constitutional provisions. For your information,. Article II 527 of the Pennsylvania Constitution provides as follows: Confidential Advice 92 -563 April 1, 1992 Page 6 such. S27. Changes in term of office or salary prohibited No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment. It is recommended that you seek the advice of legal counsel with regard to the propriety of the proposed_ conduct under the Borough Code and Article III, 527 of the Pennsylvania Constitution. Conclusion: As a Council Member for Borough A, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, there is no prohibition upon you as a Member of Borough Council from voting for and receiving increased compensation in the amount of $75 per month since that salary is provided for by law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. It is recommended that you seek the advice of legal counsel as to the propriety of the proposed conduct under the Borough Code and /or Article III, 527 of the Pennsylvania Constitution. 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. 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. Sincerely, rfr/f cc-ratea Vincent J. Dopko Chief Counsel