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HomeMy WebLinkAbout21-541 Droppa PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL August 10, 2021 To the Requester: Mr. Douglas R. Droppa 21-541 Dear Mr. Droppa: This responds to your letter received July 20, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issues: 1. Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1101 et seq., would impose prohibitions or restrictions upon the naming of a Borough owned, public access garden, after a currently serving Borough Council Member? Brief Answer: NO. As presented, there is no use of office by the public official and more importantly, no private pecuniary benefit, and as such there is no conflict of interests pursuant the Ethics Act. Facts: 1 On behalf of Galeton Borough Council Member, Denise (Denny) Dean, you have requested an advisory from the Commission based upon submitted facts, the material portion of which are summarized below. 1 Ms. Denise Dean has authorized you to make this request on her behalf. Droppa/Dean, 21-541 August 10, 2021 Page 2 You state that Denise (Denny) Dean has been a nearly lifelong resident of Galeton Borough, Potter County, Pennsylvania. In the more than 25 years that you have personally known her, she has dedicated an unbelievable number of hours and efforts to local churches, the Chamber of Commerce, and now as a Galeton Borough Council Member. Galeton Borough most recently purchased an overgrown lot next to the Borough Municipal Office and Police Station. Council would like to create a small, formal garden in this area and he Denny Dean Rose Garden You state that no public tax money would be used for the purchasing of plants, trellises, mulch, topsoil, sand, lumber, picnic table, bench, grass seed, garbage can, concrete and/or any other items used for the garden construction. Additionally, you state that Borough employees would not be responsible for any of the labor. You state that all money utilized for this project will be raised through donations, including private donations from Council Members, and friends and family of Ms. Dean. You also state that an unofficial poll of Council Members showed unanimous support for this project and the naming of the garden after Ms. Dean. You stated that neither yourself nor Ms. Dean would participate in any vote of Council regarding the proposed action. You conclude by stating that there would be no financial benefit to Ms. Dean from having the garden named after her. The garden would be open to the public and no merchandise would be sold in conjunction with the garden. Any improvements that would be made to the vacant lot ultimately become Borough property and do not belong to any one individual or person, including but not limited to, Ms. Dean and/or members of her immediate family. You state that you do not believe that a conflict of interest exists and that you and Ms. Dean are willing to submit an affidavit confirming that you do not, and would not, receive any financial benefit from this project. You seek advice as to whether or not there are any prohibitions under the Pennsylvania Public Official and Employee Ethics Act regarding the naming of this garden after Ms. Denise (Denny) Dean, a currently serving Member of Galeton Borough Council. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. As a Borough Council Member, Ms. Dean is a public official as that term is defined in the Ethics Act, and therefore is subject to the provisions of the Ethics Act. Droppa/Dean, 21-541 August 10, 2021 Page 3 Sections 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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/public employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee herself, any member of her immediate family, or a business with which she or a member of her immediate family is associated. Droppa/Dean, 21-541 August 10, 2021 Page 4 The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In applying the above provision of the Ethics Act to the instant matter, you have stated that Ms. Dean would abstain and not participate in any formal vote of Borough Council regarding the naming and/or creation of this garden. It is noted that use of office can extend beyond mere voting, and would include any effort to influence, lobby, or otherwise utilize the authority of ones office to further a pecuniary benefit. Most importantly, you have declared that neither Ms. Dean, nor any member of her immediate family would be the recipient of any pecuniary (financial) gain regarding the naming of this garden after her. It appears the only benefit that would be conveyed upon Ms. Dean is her being honored through her name being affixed to the Borough park/garden. The Supreme Court Commonwealth v. Veon, 150 A.3d 435, 446 (2016). In rendering its decision, \[did not\] intended to establish a basis for prosecuting misuse of public monies where it is not personal receipt or retention of those monies, but rather Ider favorable publicity, to obtain free publicity, to enhance standing in the community, or to otherwise Id. (internal citations omitted). Even if public monies would be utilized for the creation of this garden, the financial gain to Ms. Dean is an intangible gain. Because the only benefit is intangible, an essential element of a conflict of interest is absent and as such, there is no violation of the Public Official and Employee Ethics Act by naming the garden after Ms. Dean. However, should Ms. Dean take official action to contract or otherwise convey a pecuniary (financial) benefit to herself, members of her immediate family, and/or businesses with which her immediate family is associated, such actions could be the basis for conflict of interest. It is not suggested that such activity has or will occur; however, in order to provide a thorough response to your question, same as being noted within this advice. 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. Not addressed within this advice is to what extent, if any, the Pennsylvania Borough Code may be applicable. Conclusion: As a Borough Council Member, Ms. Denise (Denny) Dean is term is defined in the Ethics Act and is therefore subject to the provisions of the Ethics Act. Droppa/Dean, 21-541 August 10, 2021 Page 5 In order for a violation of the Ethics Act to occur, a public official must receive a pecuniary benefit, through use of their office. The stated facts do not evidence any use of office, nor a financial benefit bestowed upon Ms. Dean. The naming of the park after her would constitute an intangible gain, which cannot serve as the basis of a financial benefit pursuant the Ethics Act. As such, there is no prohibition under the Pennsylvania Public Official and Employee Ethics Act of naming the park after her. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any of good faith conduct in any other civil or criminal proceeding, provided the requester 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. Respectfully, Brian D. Jacisin Chief Counsel