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HomeMy WebLinkAbout03-599 CollJack Coll Coll's Custom Framing and Photography 324 Fayette Street Conshohocken, PA 19428 Re: Conflict; Public Official /Employee; Sewer Authority Board Member; Candidate; Borough Council; Board of Directors of Fellowship House; Non - Profit; Business With Which Associated; Artwork. Dear Mr. Coll: ADVICE OF COUNSEL November 19, 2003 03 -599 This responds to your letter received on October 20, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a borough council member with respect to participating in matters involving a non - profit community youth center where: (1) the borough council member is a member of the board of directors of the youth center; (2) the borough council member is under commission by the youth center board to do artwork for the youth center; and (3) the borough council has pledged funds to renovate the youth center. Facts: You currently serve as one of 15 members of the Board of Directors of the Fellowship House ("Fellowship House Board "), the youth center of Conshohocken Borough ("Borough"). You also serve as a Member of the Board of Directors of the Conshohocken Sewer Authority. On November 4, 2003, you will run for a seat on Borough Council, a seven member board. Although the Fellowship House building and property are owned by the Borough, the Fellowship House Board, which is an independent board, governs the Fellowship House, as it has done for the past 50 years. During the past 50 years, the Fellowship House has been funded primarily by corporate donations and the United Way. In recent years, the Borough has contributed $12,000 annually since the United Way has cut back on its allotment of funds. The Fellowship House was built in 1952. Six years ago, the Board planned and approved a 3 million dollar renovation project, which project is expected to be completed within the next two months. The Fellowship House Board raised 1.5 million Coll 03 -599 November 19, 2003 Page 2 dollars from private and corporate donations, and Borough Council pledged the other 1.5 million dollars. Your family owns and operates the only frame shop in the Borough. The Fellowship House Board has asked you to plan and execute $2,000 worth of artwork for the newly renovated youth center. You pose the following three questions. 1. Whether you would have a conflict of interest under the Ethics Act with respect to serving on the Fellowship House Board while being under commission to do artwork for the Fellowship House; 2. Whether you would have a conflict of interest under the Ethics Act with respect to serving on Borough Council while being under commission to do artwork for the Fellowship House; and 3. Whether the artwork must be completed and paid for by November 4, 2003, the day of the election, or January 1, 2004, the day that you would take office if you would win the election. You state that should you be elected on November 4, 2003, you would not make any decisions or vote on any Borough business until you would officially take office in January. 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 Member of the Board of Directors of the Conshohocken Sewer Authority, are a public official subject to the provisions of the Ethics Act. Further, if you would win the election for a seat on Borough Council, you would, upon assuming office as a Borough Council Member, become a public official subject to the provisions of the Ethics 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 Coll 03 -599 November 19, 2003 Page 3 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, stock company, receivership, trust or any legal entity organized for profit. "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. 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 Coll 03 -599 November 19, 2003 Page 4 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, you are advised that Section 1103(a) of the Ethics Act 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 the course of public action, Metrick, Order No. 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 No. 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 or private client(s). Miller, Opinion 89 -024; Kannebecker, Opinion No. 92 -010. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion No. 89 -002; Garner, Opinion No. 93 -004; Snyder, Order No. 979 -2, affirmed Snyder v. SEC, 686 A.2d 843 (Pa. Commw. Ct. 1996), alloc. den., No. 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). As a Sewage Authority Member and a Borough Council Member, you would generally have a conflict as to matters before you that would financially benefit yourself, a member of your immediate family, a business with which you or a member of your immediate family is associated, or private client(s). See, Miller, supra; Kannebecker, supra. Having established the above general principles, your specific inquiries shall now be addressed. With regard to your first question, it is administratively noted that the Fellowship House is a non - profit organization with major funding provided by the United Way. If the Fellowship House is, in fact, a private non - profit organization, then as a Fellowship House Board Member, you would not be considered a public official. Therefore, the Ethics Act would not prohibit you from serving on the Fellowship House Board while being under commission to do artwork for the Fellowship House because you would presumably be taking such action in a private capacity, which is beyond the scope of the Ethics Act. Coll 03 -599 November 19, 2003 Page 5 With regard to your second question, the Fellowship House would be considered a business with which you as a Fellowship House Board Member are associated. First, the definition of the term "business" as set forth in the Ethics Act is very broad. Novak, Opinion No. 91 -009. The Fellowship House is an "organization" within that de inif tion. Second, the fact that the Fellowship House is a non - profit organization would not disqualify it as a "business." The word "or" toward the end of the definition of "business" is disjunctive, and the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the preceding forms of entities in the list. See, Soltis - Sparano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McCo�nah , Opinion No. 96 -006). Since the Fellowship House is a "business" as that term is defined in the Ethics Act, it is clearly a business with which you are associated in your capacity as a Fellowship House Board Member. See, Id., at 31 -32. Having established that the Fellowship House is a business with which you are associated, you are advised that pursuant to Section 1103(a) of the Ethics Act, as a Borough Council Member, you would have a conflict of interest as to matters that would result in a financial benefit to the Fellowship House. You state that the Borough has pledged funds for the Fellowship House renovation project. Thus, you would specifically have a conflict as to matters involving the funding by the Borough for the Fellowship House. As to your third question, the timeframe in which the artwork would be completed and paid for would be irrelevant. In each instance of a conflict, you would be required to abstain and to observe 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. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member of the Board of Directors of the Conshohocken Sewer Authority, 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. Further, if you would win the election for a seat on the Conshohocken Borough Council, you would, upon assuming office as a Borough Council Member, become a public official subject to the provisions of the Ethics Act. As a Sewage Authority Member and a Borough Council Member, you would generally have a conflict as to matters before you that would financially benefit yourself, a member of your immediate family, a business with which you or a member of your immediate family is associated, or private client(s). It is administratively noted that the Fellowship House is a non - profit organization; therefore, as a Member of the Board of Directors of the Fellowship House, you would not be considered a public official. The Ethics Act would not prohibit you from serving on the Fellowship House Board while being under commission to do artwork for the Fellowship House because you would presumably be taking such action in a private capacity, which is beyond the scope of the Ethics Act. The Fellowship House would be considered a business with which you as a Fellowship House Board Member are associated. Pursuant to Section 1103(a) of the Ethics Act, as a Borough Council Member, you would have a conflict of interest as to matters that would result in a financial benefit to the Fellowship House. You state that the Borough has pledged funds for the Fellowship House renovation project. Thus, you would specifically have a conflict as to matters involving the funding by the Borough for Coll 03 -599 November 19, 2003 Page 6 the Fellowship House. The timeframe in which the artwork would be completed and paid for would be irrelevant. In each instance of a conflict, you would be required to abstain and to observe the disclosure requirements of Section 1103(j) 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