HomeMy WebLinkAbout03-506 WilliamsPatrick W. Williams
612 Timber Lane
Clarks Summit, PA 18411
Dear Mr. Williams:
ADVICE OF COUNSEL
January 30, 2003
03 -506
Re: Conflict; Public Official /Employee; Borough Councilman; Immediate Family
Member; Son; Police Officer; Voting to Fill Vacancy For Mayor.
This responds to your letter of December 31, 2002, by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon a upon a borough
council member as to voting to fill a vacancy for mayor when his son is a full -time police
officer for the borough.
Facts: You are a member of the Council of the Borough of Clarks Summit
orough "), having commenced your first four -year term on January 1, 2002. You
request an advisory from the State Ethics Commission based upon the following
submitted facts.
Your son is a full -time police officer for the Borough. After taking the Civil
Service Examination, your son's status changed from part -time police officer to full -time
police officer on August 18, 1996.
On December 11, 2002, the Borough Mayor, Anthony Perry, passed away. You
state that in accordance with the provisions of the Borough Code, the Borough Council
President assumed the duties of Mayor. You further state that Borough Council must fill
the vacancy within thirty (30) days.
Borough Council is scheduled to vote on filling the vacancy for Mayor at a regular
meeting on Wednesday, January 8, 2003, at 7:00 p.m. Given that your son is a full -time
police officer, you ask whether you may vote on this matter. If you may vote on the
matter, you ask whether you must make any type of public disclaimer /statement prior to
casting your vote.
Williams, 03 -506
January 30, 2003
Page 2
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.
As a Council Member for the Borough of Clarks Summit, you are a public official
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
Williams, 03 -506
January 30, 2003
Page 3
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
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. Your son is clearly 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 be prohibited from
using the authority of your office as a Borough Council Member, or confidential
information, for the private pecuniary benefit of yourself or your son. In each instance of
a conflict, you would be required to abstain and observe the disclosure requirements of
Section 1103(j) of the Ethics Act.
Williams, 03 -506
January 30, 2003
Page 4
As to the question you have posed, the fact that your son is a full -time police
officer for the Borough would not preclude you from voting to fill the vacancy for Mayor
absent the element of a prohibited private pecuniary benefit under Section 1103(a) or
an improper understanding under Section 1103(b) or Section 1103(c) 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 Borough Code.
Conclusion: As a Council Member for the Borough of Clarks Summit
( "Borough "), you are a public official subject to the provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your son is a member of
your immediate family. Pursuant to Section 1103(a) Elf the Ethics Act, you would be
prohibited from using the authority of your office as a Borough Council Member, or
confidential information, for the private pecuniary benefit of yourself or your son. In
each instance of a conflict, you would be required to abstain and observe the disclosure
requirements of Section 1103(j) of the Ethics Act. The fact that your son is a full -time
police officer for the Borough would not preclude you from voting to fill the vacancy for
IVlayor absent the element of a prohibited private pecuniary loenefit under Section
1103(a) or an improper understanding under Section 1103(b) or Section 1103(c) 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