HomeMy WebLinkAbout03-510 O'DonnellWilliam S. O'Donnell
Director of Administration /Chief Clerk
Butler County Board of Commissioners
124 W. Diamond Street, P.O. Box 1208
Butler, PA 16003 -1208
Dear Mr. O'Donnell:
ADVICE OF COUNSEL
February 19, 2003
03 -510
Re: Conflict; Public Official /Em loyee; County; Chief Clerk and Director of
Administration; Selling Real Estate Owned Jointly Owned With Spouse to County
Human Services Department.
This responds to your letter of January 13, 2003, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a county chief clerk
and director of administration as to selling real estate jointly owned with his spouse to
the county human services department.
Facts: As Chief Clerk and Director of Administration for the County of Butler
('County'), you seek an advisory from the State Ethics Commission based upon the
following submitted facts.
You have served as Chief Clerk and Director of Administration almost
continuously from January 1992 to the present. You have submitted a copy of the
County's organizational chart, which is incorporated herein by reference.
You state that in your current position, you are responsible for the
implementation of public policy as determined by the Board of Commissioners, and the
general administration of the County and its 40 departments and 800+ full -time and
part -time employees. You further state that under the County Code, 16 P.S. § 521, you
are responsible for keeping the books and accounts of the Board of Commissioners,
recording and filing their proceedings and papers, attesting all orders and voucher
checks issued by them, and performing all other duties pertaining to the Office of Chief
Clerk.
In 1998, you and your wife acquired title to a vacant one acre parcel of real
property in Pullman Square, a retail shopping and office complex located in the City of
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February 19, 2003
Page 2
Butler. Since acquiring the property, it has been marketed for sale, but has yet to have
been sold. You state that you are currently considering constructing a two or three story
building on the property and selling condominium units in the building to interested
parties.
Should you construct a building on your property, the Director of the Butler
County Human Services Department would like to acquire one or more units in the
building to be used for the provision of County related mental health and mental
retardation services.
You state that as a public employee, you understand the restrictions of Section
3(a) of the Ethics Act (conflict of interest provision). You ask whether there are any
prohibitions or restrictions as to conveying real estate owned by your wife and yourself
to the County.
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 Chief Clerk and Director of Administration for the County of Butler, 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
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February 19, 2003
Page 3
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
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 applying the above provisions of the Ethics Act to your inquiry, it is noted that
Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit
public officials /public employees from having outside business activities or employment;
however, the public official /public employee may not use the authority of his public
position - -or confidential information obtained by being in that position- -for the
advancement of his own private pecuniary benefit or that of a business with which he is
associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited
under Section 1103(a) would include: (1) the pursuit of a private business opportunity in
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February 19, 2003
Page 4
the course of public action, Metrick, Order 1037; (2) the use of governmental facilities,
such as governmental telephones, postage, staff, equipment, research materials, or
other property, or the use of governmental personnel, to conduct private business
activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official
capacity as to matters involving the business with which the public official /public
employee is associated in his private capacity, Gorman, Order 1041.
As to the question you have posed, assuming there would be no improper
understandings under Sections 1103(b) and 1103(c) of the Ethics Act and no use of
authority of office or confidential information for a private pecuniary benefit of yourself, a
member of immediate family such as your spouse, or a business with which you or a
member of your immediate family is associated, you would not have a conflict of interest
as to selling real estate jointly owned with your spouse to the County Human Services
Department.
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 County Code.
Conclusion: As the Chief Clerk and Director of Administration for the County of
Butler, 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. Assuming there would
be no improper understandings under Sections 1103(b) and 1103(c) of the Ethics Act
and no use of authority of office or confidential information for a private pecuniary
benefit of yourself, a member of your immediate family member such as your spouse, or
a business with which you or a member of your immediate family is associated, you
would not have a conflict of interest as to selling real estate jointly owned with your
spouse to the County Human Services Department. 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 w►11
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