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HomeMy WebLinkAbout04-605 ChamberlainWalter Chamberlain, Manager Luzerne Conservation District 485 Smith Pond Road Shavertown, PA 18708 Dear Mr. Chamberlain: ADVICE OF COUNSEL December 23, 2004 04 -605 Re: Conflict; Public Official; Chairman of Board of Directors of Conservation District; Group Health Care Insurance; Participation At Public Official's Own Expense; Private Pecuniary Benefit. This responds to your letter of November 19, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose prohibitions or restrictions upon the chairman of the board of directors of a conservation district with regard to participating at her own expense in group health care insurance provided through the conservation district. Facts: As the Luzerne Conservation District Manager, you have been authorized by the Chairman of the Board of Directors of the Luzerne Conservation District ( "Conservation District ") to seek an advisory from the State Ethics Commission on her behalf. You have submitted facts that may be fairly summarized as follows. The Conservation District is a subdivision of state government, organized in accordance with Act 217 and the Conservation District Law. Conservation District Board Members are appointed to four -year terms by the Luzerne County Commissioners and serve without pay. The Conservation District provides health care insurance to employees as part of an employee benefit package. By providing this benefit to eight employees, the Conservation District is able to take advantage of a group rate. You ask whether, pursuant to the Ethics Act, the Chairman would be permitted to participate at her own expense in the group health care insurance provided through the Conservation District. 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts Chamberlain, 04 -605 December 23, 2004 Page 2 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. It is further initially noted that your advisory request letter as submitted encompassed the prospective conduct of additional Conservation District Board Members who did not authorize your request. You lack standing to request an advisory as to such other Board Members. See, 65 Pa.C.S. §§ 1107(10), (11). Consequently, this advisory will only address the Chairman's prospective conduct. The Conservation District Board Chairman is a "public official" as that term is defined in the Ethics Act, and hence, she is 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 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. 65 Pa.C.S. § 1102. 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. Section 1103(j) of the Ethics Act provides as follows: Chamberlain, 04 -605 December 23, 2004 Page 3 § 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) of the Ethics Act requires the public official /public 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. Although the State Ethics Commission does not have the statutory jurisdiction to interpret the Conservation District Law, it is administratively noted that the Conservation District Law provides that the directors of a conservation district have the power to provide "adequate and necessary insurance coverage" for directors and employees, and "appropriate fringe benefits" for employees," provided funds are available for such purposes." 3 P.S. § 857(2). This Advice shall necessarily be limited to addressing your inquiry under the Ethics Act. You are advised that generally, Section 1103(a) of the Ethics Act does not prohibit a public official from participating at his or her own expense in the same group health care insurance coverage provided through the governmental body to other eligible participants, as long as the public official does not use the authority of his or her public office to obtain such coverage, for example, by taking action to advance, authorize or approve his or her own participation. See, Domalakes, Opinion 85 -010; Keiter, Opinion 90 -004; Dawson, Opinion 97 -003; cf., flfidential Advice, 04 -569 at 4. Therefore, you are advised that conditioned upon the assumptions that the Conservation District Board Chairman: (1) would be participating in the same group health care insurance coverage provided through the Conservation District to other Chamberlain, 04 -605 December 23, 2004 Page 4 eligible participants; and (2) would not use the authority of her public office to advance or obtain her participation in the health care insurance plan provided through the Conservation District, but rather, would fully abstain from the matter and would fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as to such matter, the Chairman's participation at her own expense in the health care insurance plan provided through the Conservation District would not be prohibited by Section 1103(a) 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: The Chairman of the Board of Directors of the Luzerne Conservation District ( "Conservation District ") is a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se q. Conditioned upon the assumptions that the Conservation District Board Chairman: (1) would be participating in the same group health care insurance coverage provided through the Conservation District to other eligible participants; and (2) would not use the authority of her public office to advance or obtain her participation in the health care insurance plan provided through the Conservation District, but rather, would fully abstain from the matter and would fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as to such matter, the Chairman's participation at her own expense in the health care insurance plan provided through the Conservation District would not be prohibited by Section 1103(a) 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