HomeMy WebLinkAbout92-571Marian Shiflet O'Brien, Esquire
18 East Second Street
P.O. Box 199
Media, PA 19063 -0199
Re:
Dear Ms. O'Brien:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 29, 1992
92 -572
Conflict, Public Official /Employee, Borough Council Member,
Use of Authority of Office, Business with which Associated,
Chairman of the Board, Volunteer Fire Company.
This responds to your letter of March 16, 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 borough council
member who is also the chairman of the board of the borough's
volunteer fire company which serves the borough and surrounding
municipalities and which receives funding and leases its building
from the borough.
Facts: As Solicitor for the Borough of Media in Delaware County,
Pennsylvania, you seek an advisory from the State Ethics Commission
on behalf of a Member of Borough Council ( "Council ") who also
serves as a member and Chairman of the Board of the Borough's
volunteer fire company. The governing body consists of a seven
member Council and a Mayor. The Borough and surrounding
municipalities are serviced by the all volunteer fire company known
as the Media Fire, Hook & Ladder Company No. 1. Members of the
fire company do not receive compensation. The fire company does
receive funding and leases its building from the Borough.
The Council Member in question has expressed concern over the
potential conflict between his position as a Council Member and as
a member of the fire company serving as Chairman of its Board of
Directors. You ask whether the Ethics Law would prohibit or
restrict this Council Member from participating in or voting on
matters concerning the fire company.. If such restriction exists,
you further seek clarification as to what areas . of fire company
affairs this Council Member must avoid, or `whether the prohibition
includes all matters pertaining to the are company.
Marian Shiflet O'Brien, Esquire
April 29, 1992
Page 2
Discussion: As a Borough Council Member for the
in Delaware County, Pennsylvania, the Council
behalf you have inquired is a public official
defined under the Ethics Law, and hence he is
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.
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 include an action having a
de minimis economic impact or which affects to .
the same 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.
"Business." Any corporation,
partnership, sole proprietorship, firm,
enterprise, franchise, association,
organization, self- employed individual,
holding company, joint stock company,
receivership, trust or any legal entity
Borough of Media
Member on whose
as that term is
subject to the
The following terms are defined in the Ethics Law as follows:
Marian Shiflet O'Brien, Esquire
April 29, 1992
Page 3
organized for profit.
"Business with which he is associated."
Any business in which the person or a member
of the person's immediate family is a
director, officer,, owner, employee or has a
financial interest.
In addition, Sections 3 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 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 abstained
from voting as a result of a conflict of
interest, and the remaining two members of the
governing .body have .cast apposing •votes, the
Marian Shiflet O'Brien, Esquire
April 29, 1992
Page 4
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 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 the facts which you have submitted, the Media Fire, Hook _&
Ladder Company No. 1 is a business with which the Council Member as
its Board Chairman is associated, as defined in the Ethics Law.
Thus, pursuant to Section 3(a) of the Ethics Law, this Borough
Council Member would have 'a conflict of interest as to any matter
before the Borough Council where the use of the authority of office
or confidential information received by holding that public
position would result in a private pecuniary benefit for the
Council Member himself, any member of his immediate family, or any
business with which he or a member of his immediate family is
associated including but not limited to the fire company. Such
matters would include but not be limited to funding for the fire
company and leasing the building to the fire company. However, the
advisory process, which requires that the requestor truthfully
disclose all of the material facts, precludes speculation as to all
of the various matters where= a conflict of .interest -could
conceivably arise.. Should specific issues _ where further
advice is needed, you -may submit another inquiry as to such
circumstances.
in each instance of a conflict of interest, this particular
Council Member would be required to abstain from any participation
of any nature whatsoever, including but not limited to
participating in discussions, lobbying for a particular result,
and /or voting, and he would additionally be required to fully
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
Marian Shiflet O'Brien, Esquire
April 29, 1992
Page 5
Ethics Law has not been considered in, that they do not involve an
interpretation of the Ethics 'IawE. specifically not addressed
herein is the applicability of the Borough Code.
Conclusion: As a•Borouch Council Member for the Borough of
Media in Delaware County, Pennsylvania, the Borough Council Member
on whose behalf you have submitted your inquiry is a public
official subject to the provisions of the Ethics Law. The Media
Fire, Hook & Ladder Company No. 1 which this Borough Council Member
serves as a member and Chairman of the Board of Directors, is a
business with which he is associated. The said'Council Member may
not use the authority of office or confidential in €oriaation
received by holding such public position for the private pecuniary
benefit'of the Council Member himself, any member of his immediate
family, or any business with which he or a member of his immediate
family is associated, including but not limited to the Media Fire,
Hook & Ladder Company No. 1. Such conflicts of interest would
include but would not be limited to funding for the fire company
and leasing t� the fire company the building where it is housed,
In each instance of a conflict of interest, the disclosure
requirements of Section 3(j) as set forth above must be fully
satisfied. 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 given.
such.
This letter is a public record and will be made available as
Finally 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.
ncereiy,
Vincent J1-► Dop)co
Chief Counsei