Loading...
HomeMy WebLinkAbout06-606 REAMSRaymond Reams 110 Kate Street P.O. Box 84 Osceola Mills, PA 16666 -0084 Dear Mr. Reams: ADVICE OF COUNSEL December 7, 2006 06 -606 This responds to your letter of November 1, 2006, 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 present any prohibition or restrictions upon a borough council member with regard to: 1) voting to appoint himself to serve on a sewer authority board in an unpaid status; or 2) voting to expend borough funds to purchase gifts and provide bonuses of one week of pay for each of the borough's employees. Facts: You are a Council Member for Osceola Mills Borough ( "Borough "). The Borough Council, which consists of seven members, appoints members to a sewer authority board. You would like to serve on the sewer authority board in an unpaid status. You ask whether the Ethics Act would prohibit or restrict you from voting as a Borough Council Member to appoint yourself to the sewer authority board. Your second inquiry relates to a Borough Council Member who wants to expend Borough funds to provide gifts and a bonus of one week of pay for the Borough's employees. You ask whether Borough Council would be permitted to use Borough funds to provide these gifts and bonuses to the Borough's employees. 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 Borough Council Member, 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. Reams, 06 -606 December 7, 2006 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. "Immediate family." A parent, spouse, child, brother or sister. 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 Reams, 06 -606 December 7, 2006 Page 3 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. As for your first inquiry, you are advised as follows. Section 1103(a) of the Ethics Act would prohibit you from using the authority of office to obtain a private pecuniary benefit for yourself. Based upon the submitted fact that you would serve on the sewer authority board in an unpaid status, you would not obtain a private pecuniary benefit as a result of voting to appoint yourself to the sewer authority board. Therefore, conditioned upon the fact that you would serve in an unpaid status on the sewer authority board, Section 1103(a) of the Ethics Act would not prohibit you from voting to appoint yourself to that board. See, Caltaqirone, Advice of Counsel, 90 -553. As for your second inquiry, you are advised as follows. Initially, it appears as though you are asking whether the utilization of Borough funds to provide gifts and bonuses to the Borough employees constitutes an appropriate expenditure of public funds. Such an issue is beyond the scope of the Ethics Act and as such will not be addressed. In this regard, you are advised that the State Ethics Commission may only address whether a specific act by a public official /public employee is appropriate under the Ethics Act. To the extent that you are asking whether you would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting to provide gifts and bonuses to the Borough employees, you are advised as follows. Conditioned upon the assumption that none of the Borough employees would be a member of your "immediate family" as that term is defined in the Ethics Act, you would not have a Reams, 06 -606 December 7, 2006 Page 4 conflict of interest under Section 1103(a) with respect to voting to provide gifts and bonuses to the Borough employees. See, Jones, Advice of Counsel, 92 -522, and Lennon, Advice of Counsel, 00 -597. 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 a Council Member for Osceola Mills 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. Section 1103(a) of the Ethics Act would prohibit you from using the authority of office to obtain a private pecuniary benefit for yourself. Based upon the submitted fact that you would serve on the sewer authority board in an unpaid status, you would not obtain a private pecuniary benefit as a result of voting to appoint yourself to the sewer authority board. Therefore, conditioned upon the fact that you would serve in an unpaid status on the sewer authority board, Section 1103(a) of the Ethics Act would not prohibit you from voting to appoint yourself to that board. Additionally, conditioned upon the assumption that none of the Borough employees would be a member of your "immediate family" as that term is defined in the Ethics Act, you would not have a conflict of interest under Section 1103(a) with respect to voting to provide gifts and bonuses to the Borough employees. 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