HomeMy WebLinkAbout92-614July 16, 1992
Ms. Barbara S. Ivancik,
313 Merchant Street
Ambridge, PA 15008
Dear Ms. Ivancik:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
92 -614
Re: Conflict, Public Official /Employee, Private Employment or
Business, Borough, Member, Water Authority, Accountant,
Private Business Services to Borough.
This responds to your letter of June 11, 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 of a borough
water authority from performing private business services for the
borough.
Facts: Having been appointed by the Ambridge Borough Council in
January, 1992, to serve a five year term on the Ambridge Water
Authority, you seek an advisory from the State Ethics Commission.
You state that as a business owner, you wish to perform services
for the Borough of Ambridge. It is noted that your letterhead
indicates that you are a Certified Public Accountant. You state
that the Borough Council has no control over the Ambridge Water
Authority except for appointing members to the Authority. Based
upon the above, you request an advisory.
Discussion: As a Member of the Ambridge Water Authority for the
Borough of Ambridge, 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.
Barbara S. Ivancik, C.P.A.
juiy 16, 1992
page 2
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 .sin action loving a
de minimis economic impact gr 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
e mployee, a member of his immediate family or
a business with which he or a member of his
immediate faily 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 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 er 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 10) of the ethics Law provides as follows:
potion 3. Restricte4 activities.
Barbara S. Ivancik, C.P.A.
July 16, 1992
Page 3
(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 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.
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 or a business
with which he or a member of his immediate family is associated. It
is noted that Section 3(a), of'the Ethics Law does not prohibit
public officials /employees.from outside business activities or
employment. Rather, Section 3(a) restricts the conduct of the
public official /public employee in his public capacity.
Barbara S. Ivancik, C.P.A.
July 16, 1992
Page 4
Thus, Section 3(a) would not preclude your . prospective
performance of private business services for the Borough of
Ambridge which is a separate governmental body from the Ambridge
Water Authority. However, in your capacity as a public official,
you would be- required to observe Section 3(a). A public official/
employee may not use the authority of office for the advancement of
his own private pecuniary benefit or that of a business with which
he is associated. Pancoe, Opinion 89 -011. A public
official /employee must exercise caution so that his private
business activities do not conflict with his public duties.
Crisci, Opinion 89 -013. Thus, a public official /employee could not
perform private business using governmental facilities or
personnel. In particular, the governmental telephones, postage,
staff, equipment, research materials, personnel or any other
property could not be used as a means, in whole or part, to carry
out private business activities. In addition, the public
official /employee could not during government working hours,
solicit or promote such business activity. Pancoe, supra.
Similarly, Section 3( would expressly prohibit the use of
confidential information received by holding public. office/
employment for such a prohibited private pecuniary benefit.
In the event that your private employer or business would have .
a matter pending before your governmental body, the Ambridge Water
Authority, or if you as part of such official duties must
participate, review or pass upon that matter, a conflict would
exist. Miller-, Opinion 89 -024. In those instances, it will be
necessary that you be removed from that process. In such cases as
noted above, Section 3(j) of the Ethics Law would require not only
that you abstain from participation but also publicly disclose the
abstention and the reasons for same, both orally and in a written
memorandum filed with the secretary recording the minutes.
In summary,_ the Ethics Law would restrict the following:
1. The use of authority of office to obtain any business in
a private capacity;
2. - utilization of confidential information _gained through
public position
3. - participating in discussions, reviews, or recommendations
on matters which - relate to the bus - iness /private employer which may
come before the governmental body and in such cases publicly
announcing the-relationship,or advising the supervisor as well as
filing a - written memorandum as per the _requirements .of Section 3(j)
of the 'Ethics Law. Brooks Opinion 8-9 -023.
- The• - propriety of the proposed conduct .has .only been addressed
under the Law; the applicability of any,_other statute; code,
■
Barbara S. Ivancik, C.P.A.
July 16, 1992
Page 5
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 or the Municipality
Authorities Act.
Conclusion: As a Member of the Ambridge Water Authority for the
Borough of Ambridge, Pennsylvania, you are a public official
subject to the provisions of the Ethics Law. Section 3(a) of the
Ethics Law would not preclude you from outside employment /business
activity subject to the restrictions and qualifications as noted
above. In the event that the employer /business has matters pending
before. the. Ambridge Water Authority which is your governmental
body, then you could not participate in that matter and the
disclosure requirements of Section 3(j) of the Ethics Law as
outlined above must be 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.
_.- This letter is a public record and will be made available as
such.
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 §2.12.
ncerely,
Vincent J. Dopko
Chief Counsel