HomeMy WebLinkAbout02-602 ConfidentialADVICE OF COUNSEL
October 8, 2002
02 -602
Re: Conflict; Public Official /Employee; A; B; Dating, Accepting an Engagement Ring
From, or Marrying a developer in B; Immediate Family; Spouse.
This responds to your letter of September 5, 2002, by which you requested a
confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon an A of a B from
dating, accepting an engagement ring from, or marrying a developer in the B when the
developer has several lawsuits pending against the B and the C.
Facts: You are employed as the A for B. You serve at the will of the C. You
> iesubmitted copies of your job description and the organizational chart for the B,
which documents are incorporated herein by reference.
You state that you would like to date and possibly marry a developer in the B.
You are concerned that if the developer would give you an engagement ring, such could
be construed as a prohibited bribe or gift. You state that the developer has several
lawsuits pending against the B and the C.
You ask whether you would have a conflict of interest if you would date, accept
an engagement ring from, or marry the developer. You further ask whether you would
simply be required to publicly disclose your personal relationship and abstain from
commenting on anything regarding the developer.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor
based upon the facts which the requestor has submitted. In issuing the advisory based
upon the facts which the requestor has submitted, the Commission does not engage in
an independent investigation of the facts, nor does it speculate as to facts which have
not been submitted. It is the burden of the requestor to truthfully disclose all of the
material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
Confidential Advice 02 -602
October 8, 2002
Page 2
As A for B, you are a public official /public employee as that term is defined in the
Ethics Act, and hence you are subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms are defined in the Ethics Act as follows:
§ 1102. 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. The term 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.
65 Pa.C.S. § 1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(j) of the Ethics Act provides as follows:
§ 1103. Restricted activities
(j) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
Confidential Advice 02 -602
October 8, 2002
Page 3
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.
65 Pa.C.S. § 1103(j).
In each instance of a conflict, Section 1103(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 the event that the required abstention results in the inability of the
governmental body to take action because a majority is unattainable due to the
abstention(s) from conflict under the Ethics Act, then voting is permissible provided the
disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter, pursuant
to Section 1103(a) of the Ethics Act, 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.
The Ethics Act would not prohibit you from dating, accepting an engagement ring
from, or marrying a developer in the B as such activities would occur in your private
capacity. However, if you would marry the developer, he would become a member of
your immediate family, as that term is defined in the Ethics Act. Pursuant to Section
1103(a) of the Ethics Act, you would have a conflict as to any matter(s) before you as
an A that would financially impact yourself, your spouse, or your spouse's business
including, but not limited to, D submitted by your spouse /spouse's business to the B.
You would also have a conflict as to any matter(s) concerning any lawsuit(s) that your
spouse would have pending against the B or C. In each instance of a conflict, you
would be required to abstain and to observe the disclosure requirements of Section
1103(j) of the Ethics Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the E.
Confidential Advice 02 -602
October 8, 2002
Page 4
Conclusion: As A for B, you are a public official /public employee subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §
1101 et seq. The Ethics Act would not prohibit you from dating, accepting an
engagement ring from, or marrying a developer in the B as such activities would occur
in your private capacity. However, if you would marry the developer, he would become
a member of your immediate family, as that term is defined in the Ethics Act. Pursuant
to Section 1103(a) of the Ethics Act, you would have a conflict as to any matter(s)
before you as A that would financially impact yourself, your spouse, or your spouse's
business including, but not limited to, D submitted by your spouse /spouse's business to
the B. You would also have a conflict as to any matter(s) concerning any lawsuit(s) that
your spouse would have pending against the B or C. In each instance of a conflict, you
would be required to abstain and to observe the disclosure requirements of Section
1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act.
Pursuant to Section 1107(11), an 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, provided 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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717 -787 -0806. Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel