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HomeMy WebLinkAbout92-583Dear Mr. France: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. 'BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 14, 1992 Jack H. France, Esquire 92 -583 308 Fallowfield Avenue P.O. Box 109 Charleroi, PA 15022 Re: Conflict, Public Official /Employee, Borough Council Member, Use of Authority of Office, Voting, Contract, Police, Immediate Family, Child. This responds to your letters of April 6, 1992, and April 16, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether a borough council member under the Public Official and Employee Ethics Law may vote on a contract providing for wages and benefits for the police department when one of the member's sons serves as one of the borough's three full -time police officers and another of the member's sons serves as one of the five regular part -time police officers but neither son would benefit from the contract to any different or unique extent from the other similarly situated members of their bargaining unit. Facts: As Solicitor for the Borough of New Eagle in Washington County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of Mr. George Ashcraft, an elected Member of Borough Council who took office in January, 1992. The Borough's police department includes three full -time members and five regular part -time members, all of whom are recognized as members of a bargaining unit represented by the Teamsters Local Union. A proposed contract has been presented to Borough Council providing a one -year contract for wages and benefits for the police department, including the three full -time members and the five regular part -time members. One of Mr. Ashcraft's sons serves as one of the three full -time police officers, and another of Mr. Ashcraft's sons serves as one of the five regular part-time police officers. Neither son resides with Mr. Ashcraft, However, one of the Mr. Ashcraft's sons, the part - time police officer, resides in a mobile home placed on land owned Jack H. France, Esquire May 14, 1992 Page 2 by Mr. Ashcraft with no rent being charged to that son and none being paid to Mr. Ashcraft by the son. That same son is also an employee of the business owned by Mr. Ashcraft. You affirmatively state that under the proposed contract, neither of Mr. Ashcraft's sons would benefit to any extent different or unique from those benefits accruing to other similarly situated members of the bargaining unit. Based upon ail of the above, you request an advisory from the State Ethics Commission: Discussion: As a Borough Council Member for the Borough of New Eagle in Washington County, Pennsylvania, Mr. George Ashcraft is a public official as that term is defined under the Ethics Law, and hence he is 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 Jack H. France, Esquire May 14, 1992 Page 3 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 amatter 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 the vote is taken, provided that whenever a governing body would be unable to take any action an 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 Jack H. France, Esquire May 14, 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 facts 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. Mr. Ashcraft's sons are clearly members of his "immediate family" as that term is defined in the Ethics Law. Act 9 of 1989 does not include any exceptions to the definition of "immediate family" based upon age or place of residence. Although Mr. Ashcraft's sons are members of his immediate family, under the facts which you have submitted there would be no conflict of interest because the exclusionary language set forth in the definition of "conflict" or "conflict of interest" would apply. The pertinent statutory language is as follows; "'Conflict' or 'conflict of interest' does not include an action . which affects to the same degree . . 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." 65 P.S. 5402. Given your affirmative representations and assurances to this Commission that one of Mr. Ashcraft's sons is only one of three full -time members of the police department (which would be a subclass) and the other son is only one of five regular part -time members (which would be a subclass), and that under the proposed contract for wages and benefits for the police department; neither of Mr. Ashcraft's sons would benefit to any extent different or unique from those benefits accruing to the other similarly: situated members of the bargaining unit, the aforesaid exclusionary language applies and there would be no conflict of :interest if Mr. Ashcraft would vote on the final contract itself. See, Davis, Opinion 89 -012, holding that the Ethics Law would not preclude a school director from voting on a wage request for the school police, of which his father was a member, provided that there was more than one policeman in the class and provided that the school director's father was affected to the same degree as all other school police as to the wage Jack H. France, Esquire May 14, 1992 Page 5 request. For your information, in Van Rensler, Opinion 90 -017, the Commission held accordingly as to the vote by school directors to ratify a collective; bargaining agreement when :members of their respective immediate families were school district employees represented by the bargaining units, but further concluded that the Ethics Law would preclude those school directors from participating in the negotiation process leading to such finalized agreement. 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. Conclusion: As a Council Member of the Borough of New Eagle in Washington County, Pennsylvania, Mr. George Ashcraft is a public official subject to the provisions of the Ethics Lave. The Ethics Law would not preclude Mr. Ashcraft from voting on a proposed contract providing for wages and benefits for the Borough police department when one of his sons is one of the three full - time members of the police department and another of his sons is one of the five regular part -time members of the police department, where each son would be affected by the proposed contract to the same degree as all other members of his subclass in the bargaining unit. 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 Filially, if you disagree with this Advice or 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 Jack H. France, Esquire May 14, 1992 Page 6 the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, 444c4,1 AD KAI); Vincent J. Dopko Chief Counsel