Loading...
HomeMy WebLinkAbout93-532 BreitweiserDear M. Breitweiser: STATE ETHICS. COMMISSION 309 FINANCE BUILDING P.O. BOX 11470. HARRISBURG, PA 17108-147Q TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 29, 1993 William D. Breitweiser 93 -532 Acacia Financial Center The Acacia Building Parkway Center - Pittsburgh, PA 15220 Re: Conflict, -Public Official /Employee, Private Employment or Business, Borough Council Member, Financial Planner, Investment Advisor. This responds -to your letter of,February 23, 1993, 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 with regard to providing services to other municipalities in his private employment capacity as a financial planner and investment advisor Facts: You request an advisory from the State Ethics Commission fol lowing attendance at a presentation at the Tri- County Boroughs Association meeting. ti You state that as both a Certified Financial, Planner and Investment Advisory Associate, you would like to use your knowledge and skills to help municipalities with their retirement. -,and investment needs. Since you would receive either a; i . fee ,or- commission or both from this work, you would like to be sure that this would not conflict with the Ethics Law. You state., that you, could not be compensated for any -work done for your own Borough while serving as an elected official. On March 26, 1993, in a telephonedonversation'with Assistant Counsel for the Commission, you clarified' that you serve your Borough as a Member and Pres'.dent: of Borough Council. Additionally, you are Presiden >tem for the. Tri-County Boroughs Association for Washington, Greene _and` Fayette Counties, and a board member far -the State Association of Boroughs. William D. Breitweiser March 29, 1993 Page 2` Based upon the above, you request ' an - advisory from the State Ethics Commission. Discussion: As a',Member and President of a Borough Council, 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. The following terms are defined in the Ethics Law as follows: a Sectiri' Definitions. • ,! conflict or conflict of interest." Use by ._ pup;1ic 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 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. William D. Breitweiser March 29, 1993 Page '3 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 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 opposing votes, the member who hasabstained 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. William D. Breitweiser March 29, 1993 Page 4 In this case, you have posed a very narrow inquiry as to whether the Ethics Law would impose restrictions upon the performance of your private ,employment activities with regard to municipalities other than the Borough which you - serve. It is noted that advisories are only issued with regard to the questions raised. In applying the above provisions of the Ethics Law to the instant matter, we note that 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities or employment; however, the 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. In this case, performing your private employment activities for municipalities other than the Borough which you serve would not, per se, be a use of authority office for a prohibited private pecuniary benefit. Rather, you would be acting in your private capacity and with regard to other municipalities. However, you are advised that 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 dOuld 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(a) would expressly prohibit the use of confidential information received by holding public office /employment`foF such a prohibited private pecuniary benefit. In the event that your private employer or business has a matter pending before your governmental body 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 each instance of a conflict of interest, you would be required to abstain from any participation as well as to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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 William D.'Ereitweiser March 29, 1993 Page 5 public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which `may come before the governmental body and in such cases pubhitly announcing the relationship and filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law.. . =o t, Opinion 89 -023. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, cbde, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an nterpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member and President of a Borough Counci -1, you are a public official subject to the provisions of the Ethics Lacy. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity with other municipalities subject to the restrictions and qualifications as noted above. In the evert that the employer /business has matters pending before yot1r 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 hap 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 criMittal 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, if you disagree with this Advice or if you have any peason 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. 'ncerely, .D144 Vincent Dopko: Chief CounseL .J. "1