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HomeMy WebLinkAbout04-003 ConfidentialOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael J. Healey Paul M. Henry Raquel K. Bergen DATE DECIDED: March 11, 2004 DATE MAILED: March 26, 2004 04 -003 Re: Conflict; Public Official /Employee; Borough; Council Member; Business With Which Associated; Motion; Second; Vote; Three - Member Board. This Opinion is issued in response to your confidential advisory request dated January 27, 2004. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon two members of a three - member borough council as to making a motion, seconding a motion or voting on matters involving a business that employs the two council members. II. FACTUAL BASIS FOR DETERMINATION: You represent two council members who serve on a borough council consisting of three members. The two council members are employed by a business which is located within the borough. You ask whether the two council members would have a conflict of interest under the Ethics Act as to participating on matters that would come before the borough council involving their employer. Assuming a conflict would exist, you specifically ask whether under Section 1103(j) of the Ethics Act, and Garner, Opinion 93 -004, the two council members would be permitted to make a motion, second a motion or vote upon matters involving their employer's business, given that the borough council consists of only three members. By letter dated March 1, 2004, you were notified of the date, time and location of the executive meeting at which your request would be considered. At the executive meeting on March 11, 2004, you appeared and offered to answer any questions posed to you. Confidential Opinion 04 -003 March 26, 2004 Page 2 III. 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, this 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. The two borough council members are public officials as that term is defined in the Ethics Act, and hence they 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. 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 Confidential Opinion 04 -003 March 26, 2004 Page 3 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. An example of conduct that would be prohibited under Section 1103(a) would include 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; Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010. Under the submitted facts, the business which employs the two council members would be considered a business with which they are associated. The two borough council members would generally have a conflict of interest under Section 1103(a) of the Ethics Act as to matters that would financially benefit themselves or the business that employs them. In each instance of a conflict, the two council members would be required to abstain and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. In response to your question of whether the two council members would be permitted to make a motion, second a motion or vote under Section 1103(j) of the Ethics Act, we are guided by our prior precedent in Garner, Opinion 93 -004. In Garner, we considered the issue of whether, under Section 3(j) of the Ethics Law, a supervisor on a three member board would be permitted to second a motion even if he had a conflict where the two remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. We noted in Garner that seconding a motion is a use of authority of office. Hence an individual with a conflict would not be permitted to participate, make a motion, second a motion, Confidential Opinion 04 -003 March 26, 2004 Page 4 or vote. However, we also stated: [T]he General Assembly in enacting Section 3(j) would not have allowed a public official /employee on a three member board who has a conflict to be able to vote unless a second to the motion could be made so that the matter would be in the posture for a vote. Thus, we believe that since there is a need for a second to a motion in order to make Section 3(j ) of the Ethics Law operative, the General Assembly intended as to three members [sic] boards for the public official with a conflict to be allowed to second so that if the other supervisors became deadlocked, the public official could then vote provided the disclosure requirements are satisfied. Garner, at 6. In light of the foregoing, we concluded that Section 3(j) of the Ethics Law does allow a public official on a three member board to second a motion where: (1) the two remaining supervisors have opposing views; or (2) one of the other two supervisors is absent. We emphasized that our ruling was expressly limited in its application to three member boards and to the question of seconding a motion. In the instant matter, we are presented with two new questions that go beyond our holding in Garner: whether either of the conflicted council members may make a motion; and whether either of two conflicted council members could second a motion as to his/her employer. In response to the above two questions, we are reminded that the basis of our decision in Garner was the otherwise impossibility of Section 1103(j) of the Ethics Act becoming operative without the second to the motion. In Garner, we specifically dealt with the cases where one supervisor was absent or where two supervisors without conflict had opposing views. In this case, we have all three council members present with no opposing views, that is, two council members are conflicted, leaving one council member with his/her own one view. Applying the above logic in Garner to this case, we conclude that neither of the conflicted council members may make the motion. Since there is one council member who does not have a conflict, he or she may choose to make or not make a motion. There is no authorization in the Ethics Act and no other basis to allow the two conflicted council members to make the motion. There is certainly no impossibility present because the one non - conflicted supervisor may make a motion. We shall now address the issue of the second to a motion. If the non - conflicted council member makes a motion, the two remaining council members who are conflicted would otherwise be prohibited from making the second to the motion. The non - conflicted council member may not second his /her own motion. In such an instance, it would be impossible to proceed, as in Garner. Accordingly, we find that if the non - conflicted council member makes a motion, either of the two conflicted council members, if he or she so chooses, may second the motion. We shall now address the remaining issue of voting on a seconded motion. Given that borough council would be unable to take official action because the majority or other legally required vote would be unattainable due to the two conflicted council members, they would be permitted to vote if they would make the proper disclosures as required by Section 1103(j) of the Ethics Act. It is noted that the two council members' participation in this regard would be strictly limited to voting. See, Pavlovic, Opinion 02 -005. Section 1103(j) does not give the two conflicted council members the authority to otherwise participate, as for example, discussing or advocating as to the pending motion. Thus, all that the two conflicted council members are permitted to do under the Ethics Act is make a second, make the required Section 1103(j) disclosures, and then vote. Confidential Opinion 04 -003 March 26, 2004 Page 5 To summarize, when two council members on a three member board have conflicts, only the non - conflicted council member may make a motion. Since the non - conflicted council member may not second his /her own motion and the remaining two council members have conflicts, it would be otherwise impossible to obtain a second to the motion. Either of the two conflicted council members, if he or she so chooses, may then second the motion. The two conflicted council members may not discuss or advocate as to the motion following the second. The two conflicted council members may only vote on the motion. 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. IV. CONCLUSION: Borough council members are public officials subject to the provisions of the Public Official and Employee Ethics Act. The business which employs the council members is a business with which the council members are associated. The borough council members would generally have a conflict of interest under Section 1103(a) of the Ethics Act as to matters that would financially benefit themselves or the business that employs them. In each instance of a conflict, the council members would be required to abstain and to observe the disclosure requirements of Section 1103(j) of the Ethics Act. When two council members on a three member board have conflicts, the non - conflicted council member may choose to make or not make a motion. The two conflicted council members may not make the motion. As to the second of the motion made by the non - conflicted council member, he or she may not second his /her own motion. With the remaining two council members in conflict, it would be otherwise impossible for a second to occur. Either of the two conflicted council members, if he or she so chooses, may then second the motion. The two conflicted council members may not discuss or advocate as to the motion following the second. The two conflicted council members may only vote on the motion. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair