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HomeMy WebLinkAbout03-523 ReadADVICE OF COUNSEL March 13, 2003 Claudia M. Read, Clearfield County Controller Rex D. Read R.D. 3, Box 35 -A Carbon Mine Road Clearfield, PA 16830 Dear Controller and Mr. Read: 03 -523 Re: Conflict; Public Official /Employee; County; Commissioner; Controller; Candidate; Immediate Family; Spouse. This responds to your letters of February 10, 2003, and February 14, 2003, by which you requested a joint advisory 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 prohibitions or restrictions upon: (1) a county controller with respect to her husband s candidacy for county commissioner; (2) a county controller and a county commissioner who are married; and (3) a county commissioner as to participating in setting the salaries of all elected county officials, including that of his wife, the county controller. Facts: By letter dated February 10, 2003, Rex Read ("Mr. Read "), having recently announced his intention to run for Commissioner of Clearfield County (' County"), requested an advisory from the State Ethics Commission as to his prospective conduct as a County Commissioner, and as to the conduct of his spouse, Claudia Read ( "Controller Read "), the current County Controller. Subsequently, Controller Read, by letter dated February 14, 2003, requested an advisory as to her own conduct as County Controller. The facts submitted by Mr. Read were as follows. As per the County Code, the County Commissioners, during the last year of their terms, set the salaries for all elected officials including the Sheriff, Prothonotary and Controller. At the time the salaries are set by the Commissioners, the Sheriff, Prothonotary and Controller are serving in the middle of their terms. Controller Read did not submit any additional facts in her request. Read, 03 -523 March 13, 2003 Page 2 Based upon the foregoing, the following questions were posed: 1. Whether the Ethics Act would present any prohibitions or restrictions upon Controller Read as County Controller with respect to her husband's candidacy for County Commissioner; 2. Whether the Ethics Act would present any prohibitions or restrictions upon Mr. Read or Controller Read should Mr. Read would win the election for County Commissioner; and 3. If Mr. Read would win the election for County Commissioner, what procedures he must follow when the Commissioners set the salaries for the elected officials, given that his spouse is the County Controller. 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. If Mr. Read would win the election for County Commissioner, he would, upon assuming office, become a public official subject to the provisions of the Ethics Act. It is noted that the functions of the County Commissioners are as follows: § 1701. Functions of county commissioners The county commissioners shall be the responsible managers and administrators of the fiscal affairs of their respective counties in accordance with the provisions of this act and other applicable law. 16 P.S. § 1701. Controller Read is a public official subject to the provisions of the Ethics Act. It is noted that the functions of the County Controller are as follows: § 1702. Functions of the controller (a) Subject to the power and duty of the county commissioners to manage and administer the fiscal affairs of the county, the controller shall supervise the fiscal affairs of the county including the accounts and official acts relating thereto of all officers or other persons who shall collect, receive, hold or disburse the public moneys of the county. The discretionary powers of the controller shall not be applicable to the management of the fiscal policies of the county commissioners, or to matters not involving the accounts and transactions of officers or other persons of the county, but the controller shall refuse to authorize any fiscal transaction which is, by law, subject to his supervision or control where it appears that such transaction is not authorized by law, or has not been undertaken according to law, or has not received approval according to law, or as to which he desires upon reasonable grounds to investigate for or has already discovered any fraud, flagrant abuse of public Read, 03 -523 March 13, 2003 Page 3 office or any criminal act or neglect of any officer or other person of the county relating to their public accounts and transactions. He may at any time require from any such officers or other persons, in writing, an account of all moneys or property which may have come into their control. Immediately, on the discovery of any default or delinquency, he shall report the same to the commissioners who shall immediately take action to recover the money and to the district attorney of the county for such prosecution as may be warranted, and shall take immediate measures to secure the public moneys or property. (b) Pursuant to subsection (a), the county commissioners may, for the purpose of meeting Federal or State requirements, contract with or employ an independent public accountant for the purpose of preparing or conducting a report or audit of the fiscal affairs of the county, independent of and /or in addition to, that conducted by the county controller or auditors. 16 P.S. § 1702. 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. Read, 03 -523 March 13, 2003 Page 4 65 Pa.C.S. § 1102. 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. Given that Mr. Read and Controller Read are husband and wife, each is an immediate family member of the other. With regard to whether the Ethics Act would present any prohibitions or restrictions upon Controller Read as to her husband's candidacy for County Commissioner, y ou are advised that pursuant to Section 1103(a) of the Ethics Act, Controller Read could not use the authority of her office as County Controller or confidential information received by holding her public position to advance her Read, 03 -523 March 13, 2003 Page 5 husband's election to the position of County Commissioner. See, e.q., Livingston, Order 1030; Rockefeller, Order 1004. With regard to whether the Ethics Act would present any prohibitions or restrictions upon Mr. Read or Controller Read should Mr. Read would win the election for County Commissioner, it is noted that a general question has been posed, and therefore a general response shall be provided. There is no specific prohibition in the Ethics Act precluding immediate family members from holding public positions in the same county. However, subject to the "de minimis" and "class /subclass" exclusions in the definition of "conflict" or "conflict of interest" set forth above, Mr. Read and Controller Read, as public officials, would generally have conflicts of interest under Section 1103(a) of the Ethics Act as to matters that would financially impact themselves, each other, any other member of immediate family, or a business with which they or a member of immediate family is associated. In each instance of a conflict, they would be required to abstain fully and to satisfy the disclosure requirements of Section 1103) of the Ethics Act. The requirement for abstention in the event of a conflict would extend not only to voting, but also to other uses of authority of office, such as discussing, conferring with others, or lobbying for a particular result. See, Juliante, Order 809. With regard to the proper procedures that Mr. Read must follow when the Commissioners set the salaries for the elected officials including that of Controller Read, you are advised that Mr. Read as County Commissioner would have a conflict of interest under Section 1103(a) of the Ethics Act as to setting the salary of his wife as County Controller, and therefore, he would be required to: (1) abstain fully from participating in that matter; and (2) fully satisfy 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. Conclusion: If Rex Read ( "Mr. Read ") would win the election for Clearfield County ( "County ") Commissioner, he would, upon assuming office, become a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sew. Claudia Read ( "Controller Read "), as the current County Controller, is a public official subject to the provisions of the Ethics Act. There is no specific prohibition in the Ethics Act precluding immediate family members from holding public positions in the same county. Subject to the "de minimis' and "class /subclass" exclusions in the Ethics Act's definition of "conflict" or "conflict of interest," Mr. Read and Controller Read, as public officials, would generally have conflicts of interest under Section 1103(a) of the Ethics Act as to matters that would financially impact themselves, each other, any other member of immediate family, or a business with which they or a member of immediate family is associated. In each instance of a conflict, these individuals, in their respective capacities as public officials, would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Controller Read could not use the authority of her office as County Controller or confidential information received by holding her public position to advance her husband's election to the position of County Commissioner. Mr. Read as County Commissioner would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to setting the salary of his wife as County Controller and would be required to: (1) abstain fully from articipating in that matter; and (2) fully satisfy the disclosure requirements of Section 1 of 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 Read, 03 -523 March 13, 2003 Page 6 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