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HomeMy WebLinkAbout04-558 McCollianJoseph A. McCollian, Jr. Aldan Borough Council President 26 Ridley Avenue Aldan, PA 19018 Dear Mr. McCollian: ADVICE OF COUNSEL May 27, 2004 04 -558 Re: Conflict; Public Official /Employee; President; Borough Council; Coursework; Fee; Training; Reimbursement. This responds to your letter of May 2, 2004, 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 as to taking coursework at his expense for the purpose of obtaining information to resolve code issues in the borough and then submitting reimbursement to the borough for the expense of the coursework. Facts: You are Council President of Aldan Borough ( "Borough "), a small community and one of three boroughs in Delaware County that does not have a borough manager. The Borough employs four full -time police officers and a borough secretary with all other functions and community services provided by contract. Each council member manages his /her respective chairperson duties, such as Highway, Public Health, and Public Safety. As President of Council, you supplement or assist in some of these responsibilities as needed or when asked. The Council seeks to maintain the Borough as "a community of homes" through the enforcement of U & 0 inspections and daily code inspections. The inspections entail warnings or citations that may generate questions and complaints by residents. As President, you have received many inquiries and have contacted the Code or Building Inspector to respond to such concerns. In September 2003, you began receiving literature concerning the "New Uniform Construction Code" which must be adopted and followed, as of June of 2004. You discussed this new change with the Building Inspector and informed him that a class was being offered at Delaware County Community College entitled "Property Maintenance Code Exam Prep." After you asked the Building Inspector whether he McCollian, 04 -558 May 27, 2004 Page 2 believed the course would be worthwhile, he expressed his opinion that it would be extremely productive if Borough Council members were more knowledgeable and informed with the Code and its upcoming changes. After a few classes in the course, which began in January, you believed that the information provided could be utilized in the Borough to resolve code issues that were arising regarding L & I personnel who engage in selective code enforcement. You were impressed with the instructor and other students and the fee for the course was personally satisfied by you. You consulted with the Borough Vice President and the Chairperson of the L & I Committee as to whether it was appropriate for you to submit the fee for this course to the Borough. They expressed their view that if the information and training were beneficial in performing your Borough duties, then it should be considered as a legitimate training cost. You also asked your Solicitor, who gave his concurrence. When the bill was submitted for approval and payment, the Finance Chairperson questioned the validity of reimbursing the expense. Given the above, you request an advisory as to whether you are entitled to the reimbursement. 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 IDased 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 liave 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 Borough Council President, 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 McCollian, 04 -558 May 27, 2004 Page 3 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. 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 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, Pavlovic, Opinion 02 -005. McCollian, 04 -558 May 27, 2004 Page 4 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. A pecuniary benefit that is authorized in law is not a "private" pecuniary benefit. Conversely, a pecuniary benefit that is not authorized in law is a "private" pecuniary benefit. Wagner, Order 1028. Our review under §1103(a) of the Ethics Act is limited to whether you may obtain reimbursement for the coursework fee that you paid to become more knowledgeable about upcoming changes as to the new Uniform Construction Code in aid of resolving code issues in the Borough. Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, it may in certain instances be necessary to review certain provisions of other laws to the extent that those laws impact upon the Ethics Act. Sections 45703 and 46005 of the Borough Code provide in pertinent part as follows: § 45703. Other associations and organizations Any borough, by motion of council, may authorize any of its officers and /or employes to attend meetings of professional organizations and associations, or study or training sessions for persons holding the same or similar office or employment, and may pay all or any specified portion of the necessary expenses incident to their attendance at such meetings or sessions. 53 P.S. § 45703. § 46005. Powers of Council The council of the borough shall have power: (9) To pay authorized expenses incurred by elected and appointed borough officers in connection with their duties or other borough business. 53 P.S. § 46005. Although the above quoted provisions of the Borough Code seem to be limited in their application, it is unclear whether the coursework fee that you personally paid is reimbursable. Section 45703 limits the payment of expenses for borough officers and /or employees authorized to attend meetings of professional organizations and associations, or study or training sessions for persons holding the same or similar office or employment. Section 46005 limits the payment of authorized expenses incurred by elected and appointed borough officers in connection with their duties or other borough business. It would appear that a definitive answer on your entitlement to reimbursement may only come from the courts which are the final arbiters in interpreting statutory law. McCollian, 04 -558 May 27, 2004 Page 5 Therefore, until a court interprets the above provisions, it remains unclear as to whether a borough council member may receive reimbursement from the borough for coursework fees paid by the borough council member. Until such a determination is made by a court, the necessary conclusion is that to the extent the Borough Code would prohibit a borough council member from receiving reimbursement from the borough for coursework fees paid by the borough council member, the Ethics Act would then also prohibit the receipt of such a private pecuniary benefit. To the extent the Borough Code would allow a borough council member to receive reimbursement from the borough for coursework fees paid by the borough council member, so too would 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: As Council President for Aldan Borough "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. Until a court interprets the relevant portions of the Borough Code, it remains unclear as to whether a borough council member may receive reimbursement from the borough for coursework fees paid by the borough council member. Until such a determination is made by a court, the necessary conclusion is that to the extent the Borough Code would prohibit a borough council member from receiving reimbursement from the borough for coursework fees paid by the borough council member, the Ethics Act would then also prohibit the receipt of such a private pecuniary benefit. To the extent the Borough Code would allow a borough council member to receive reimbursement from the borough for coursework fees paid by the borough council member, such would also be allowable under 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 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