HomeMy WebLinkAbout06-565 RiddleMayor Randy L. Riddle
Borough of Grove City
123 West Main Street
P.O. Box 110
Grove City, PA 16127 -0110
ADVICE OF COUNSEL
June 9, 2006
(j) Voting conflict. —Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
06 -565
Dear Mayor Riddle:
This responds to your letter of May 7, 2006, by which you requested an advice
from the State Ethics Commission.
Issue: Whether a borough mayor would be prohibited or restricted by the Public
fficial and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., with regard to
serving as Chairman or Co- chairman of a local United Way effort in addition to serving
as borough mayor.
Facts: As Mayor of the Borough of Grove City ( "Borough "), you request an
advisory from the State Ethics Commission. You state that you have been asked to
serve as Co- Chairman for the United Way effort in the Borough in 2006 and as
Chairman for this effort in 2007. You ask whether your positions with the United Way
would conflict with your position as Borough Mayor.
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 Borough Mayor, you are a "public official" subject to the provisions of the
Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted Activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
Riddle, 06 -565
June 9, 2006
Page 2
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(a), (j).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined 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
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June 9, 2006
Page 3
immediate family is a director, officer, owner, employee or
has a financial interest.
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. It is noted
that the definition of the term "business" as set forth in the Ethics Act is very broad.
Novak, Opinion No. 91 -009. The fact that a particular organization might be a non - profit
organization would not disqualify it as a "business" encompassed within the definition.
See, Soltis -S arano, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007;
Mc onahy, Opinion No. 96 -006).
Subject to certain voting conflict exceptions, Section 1103(j) of the Ethics Act
requires a public official /public employee with a conflict of interest 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. 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 1037; (2) the use of governmental facilities,
such as governmental telephones, postage, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business activities,
Freind, Order 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 (Gorman, Order 1041; Rembold, Order 1303; Wilcox,
Order 1306), or private client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010).
If the private employer or business with which the public official /public employee
is associated or a private customer /client would have a matter pending before the
governmental body, the public official /public employee would have a conflict of interest
as to such matter. Miller, supra; Kannebecker, supra. A reasonable and legitimate
expectation that a business relationship will form may also support a finding of a conflict
of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public
official /public employee would be required to abstain from participation and to satisfy the
disclosure requirements of Section 1103(j) set forth above. The abstention requirement
would not be limited merely to voting, but would extend to any use of authority of office
including, but not limited to, discussing, conferring with others, and lobbying for a
particular result. Juliante, Order 809.
In the instant matter, the limited facts that you have submitted are insufficient to
form the basis for a conclusion as to whether, as a result of your serving as Chairman or
Co- Chairman of the local United Way effort, there would be a business with which you
would be associated as that relationship is defined by the Ethics Act.
Therefore, this Advice must necessarily be limited to providing the following
general guidance. Although Section 1103(a) of the Ethics Act would not preclude you
from serving as Chairman or Co- Chairman of the local United Way effort, pursuant to
Section 1103(a) of the Ethics Act, you would generally be prohibited from using
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June 9, 2006
Page 4
personnel, h ersonnel time equipment, property, facilities or resources for non -
governmental purposes. See, Rakowsky, Order 943. Additionally, you would generally
have a conflict of interest in matters before you as Borough Mayor that would financially
benefit yourself, a member of your immediate family, or a business with which you or a
member of your immediate family is associated. In each instance of a conflict of
interest, you would be required to abstain fully and to fully satisfy the disclosure
requirements of Section 1103(a) of the Ethics Act.
This Advice is limited to addressing the applicability of Section 1103(a) of the
Ethics Act. It is expressly assumed that there has been no use of authority of office for a
private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further,
you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that
no person shall offer to a public official /public employee and no public official /public
employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /public
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.
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 Mayor of the Borough of Grove City ( "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. The submitted facts are insufficient to form the basis for
a conclusion as to whether, as a result of your serving as Chairman or Co- Chairman of
the local United Way effort, there would be a business with which you would be
associated as that relationship is defined by the Ethics Act. Although Section 1103(a) of
the Ethics Act would not preclude you from serving as Chairman or Co- Chairman of the
local United Way effort, pursuant to Section 1103(a) of the Ethics Act, you would
generally be prohibited from using Borough personnel, time, equipment, property,
facilities or resources for non - governmental purposes. Additionally, you would generally
have a conflict of interest in matters before you as Borough Mayor that would financially
benefit yourself, a member of your immediate family, or a business with which you or a
member of your immediate family is associated. In each instance of a conflict of
interest, you would be required to abstain fully and to fully satisfy the disclosure
requirements of 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 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
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June 9, 2006
Page 5
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