Loading...
HomeMy WebLinkAbout05-603 CONFIDENTIALADVICE OF COUNSEL December 7, 2005 05 -603 Re: Conflict; Public Official; County Commissioner; Business With Which Associated; Budget; Vote. This responds to your letter of November 7, 2005, by which you requested a confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a county commissioner with regard to voting to approve the county's budget when the budget includes funding for a non - profit organization for which he serves as a director. Facts: As First Assistant County Solicitor for A County, you seek a confidential advisory on behalf of B, a County Commissioner. B is the C of the three - member Board of Commissioners. In a private capacity, B serves on the Board of Directors of D, a non - profit organization. The mission of D is to E. B receives no pecuniary gain from his role as Director. As part of the normal budget process, D requests funding from the County. Any decisions on this funding request is made in the course of the approval of the overall County budget for the year and not on a case -by -case basis. Based upon the foregoing facts, you ask under what circumstances B may vote on an overall budget that includes funding for D. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester 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 requester 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 requester has truthfully disclosed all of the material facts. As a Commissioner for A County, B is a "public official" as that term is defined in the Ethics Act, and hence he is subject to the provisions of that Act. Confidential Advice, 05 -603 December 7, 2005 Page 2 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint 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 Confidential Advice, 05 -603 December 7, 2005 Page 3 (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. 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. D would be considered a business with which B , as a Director, is associated. Pursuant to Section 1103(a) of the Ethics Act, B would generally have a conflict of interest in matters that would financially benefit himself or D. B would specifically have a conflict of interest in participating in approving the County budget, as such action would result in a financial benefit to D. However, if funding for D would be a separate line item on the budget, B's conflict would be limited to that particular line item pertaining to D. In each instance of a conflict, B would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The abstention requirement would not be limited to voting, but would extend to any use of authority of office, including, for example, discussing, conferring with others, and lobbying for a particular result. See, Juliante, Order 809. Despite the conflict, B would still be permitted to participate under certain limited circumstances. In Garner, Opinion 93 -004, the Commission 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 Confidential Advice, 05 -603 December 7, 2005 Page 4 remaining supervisors would have opposing views or where one of the remaining two members would be absent from the meeting. Citing Juliante, Order 809, the Commission first noted 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, or vote. See, Garner, supra. However, the Commission 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, the Commission concluded that Section 3(j), now Section 1103(j), of the Ethics Act does allow an individual to second a motion where the two remaining supervisors have opposing views or where one of the other two supervisors is absent. The Commission emphasized that its ruling was expressly limited in its application to three member boards and to the question of seconding a motion. In applying Garner to the instant matter, you are advised that under Section 1103(j) of the Ethics Act, B would be permitted to second a motion only if: (1) the two remaining Commissioners would have opposing views; or (2) one of the other two Commissioners would be absent from the meeting. Allowing B to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Commissioners would cast opposing votes, B would be permitted to vote to break the tie provided he satisfied the disclosure requirements of Sections 1103(j). However, B could not speak to the motion or advocate his view in the matter; Section 1103(j) would only allow him to vote under the above circumstances. 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 County Code. Conclusion: As a Commissioner for A County, B would be considered a "public official" subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. D would be considered a business with which B, as a Director, is associated. Pursuant to Section 1103(a) of the Ethics Act, B would generally have a conflict of interest in matters that would financially benefit himself or D. B would specifically have a conflict of interest in participating in approving the County budget, as such action would result in a financial benefit to D. However, if funding for D would be a separate line item on the budget, B's conflict would be limited to that particular line item pertaining to D. In each instance of a conflict, B would be required to abstain and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Under Section 1103(j) of the Ethics Act, B would be permitted to second a motion only in a situation where: (1) the two remaining Commissioners would have opposing views; or (2) one of the other two Commissioners would be absent from the meeting. Allowing B to second the motion in either of the above scenarios would put the matter in a posture for a vote. Thereafter, if the other two Commissioners would Confidential Advice, 05 -603 December 7, 2005 Page 5 cast opposing votes, B would be permitted to vote to break the tie provided he satisfied the disclosure requirements of Sections 1103(j). However, B could not speak to the motion or advocate his view in the matter; Section 1103(j) would only allow him to vote under the above circumstances. 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 requester 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