HomeMy WebLinkAbout07-542ADVICE OF COUNSEL
June 1, 2007
07 -542
This responds to your letter of April 20, 2007, by which you requested a
confidential advisory from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon three
members of an A with regard to participating in matters involving a B application filed
with the C by the D where: (1) each of the A members in question is an E; (2) each of
the A members in question has in the past been and may in the future be appointed by
the D F to act as a G or [perform certain duties] before the F; and (3) the spouses of two
of the A members in question are employed by the D.
Facts: As Solicitor for the C, you have been authorized by A Members Al, A2,
and A3 to request an advisory from the State Ethics Commission on their behalf. You
have submitted extensive facts, which may be fairly summarized as follows.
The C is the H of the D. The A consists of [number] Members.
On [date], the D filed an application for B with the C by which the D proposes to
construct a new 1 consisting of [certain structures]. You note that the proposed
construction at the D's expense is contemplated by [cite].
You state that although no action has yet been taken by the A with respect to the
D's B application, it is contemplated that the A will review and discuss said application
and ultimately vote to approve or deny the application and /or act on other matters
associated with the application.
Al, A2, and A3 are Es with Js in the D. Each of these A Members has in the
past served and will in the future serve on a rotating basis as a G for the K of the D F.
Appointments to serve as a G are made by the F from a list of Es actively engaged in L
in the D, and the Gs are compensated for their service by the D. You state that the
frequency of future appointments will depend upon the needs of the F.
Confidential Advice, 07 -542
June 1, 2007
Page 2
A3 has in the past been and may in the future be appointed on a rotating basis to
act as an M. Compensation for such an appointment is paid by [certain parties] at a
[type of rate], and the frequency of future appointments will depend upon the needs of
the F. You state that A3 has received no compensation or other benefits from the D
since being elected as a Member of the A.
Al 's spouse is employed as the [position] for the D. You state that said position
in no way involves any decision making or other involvement with regard to the D's B
application.
A2 has in the past been and may in the future be appointed by the N to [perform
certain duties]. Further, A2 has in the past been and may in the future be appointed by
the 0 to [perform certain other duties]. Compensation for such appointments is paid by
the D out of the F's budget at a rate fixed by the F, and the frequency of future
appointments will depend upon the needs of the F.
A2's spouse, who is also an E, is employed as the [position] for the D. You state
that said position in no way involves any decision making or other involvement with
regard to the D's B application.
You state that the approval or disapproval of the D's B application will not result
in: (1) any increase in or impact upon the aforementioned appointments to be made or
the amount of compensation to be paid for said appointments; (2) any accrual of private
pecuniary benefits to Al, A2, or A3; or (3) any accrual of private pecuniary benefits or
any change in the compensation or other benefits currently provided by the D to the
spouses of Al and A2.
You ask whether any or all of the three A Members who are the subjects of your
advisory request would have a conflict of interest with regard to participating in and /or
voting on the D's application for B or related matters.
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 Members, Al, A2, and A3 are public officials 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.
(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
Confidential Advice, 07 -542
June 1, 2007
Page 3
65 Pa.C.S. § 1102.
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 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.
"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.
Confidential Advice, 07 -542
June 1, 2007
Page 4
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.
In each instance of a voting 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. 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 your specific inquiry, you are
advised as follows.
Since the D is a political subdivision and not a "business" as that term is defined
by the Ethics Act, the D is not a business with which Al, A2, or A3 or the spouses of Al
and A2 are associated. See, Warso, Order 974. As such, under the submitted facts,
the respective relationships between the aforesaid A Members, spouses, and the F or D
would not form the basis for a conflict of interest in matters involving the D's B
application.
Therefore, you are advised that as to each of the three aforesaid A Members on
whose behalf you have inquired, absent any other basis for a conflict of interest such as
a private pecuniary benefit to the A Member, a member of the A Member's immediate
family, or a business with which the A Member or a member of the A Member's
immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit
such A Member from participating in or voting on matters involving the D's B application.
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 C Code.
Conclusion: As A Members for the C, Al, A2, and A3 are public officials subject
to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq. Since the D is a political subdivision and not a "business" as
that term is defined by Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, the D is not a
business with which Al, A2, or A3 or the spouses of Al and A2 are associated. The
respective relationships between the aforesaid A Members, spouses, and the F or D
would not form the basis for a conflict of interest in matters involving the D's B
application. As to each of the aforesaid A Members, absent any other basis for a
conflict of interest such as a private pecuniary benefit to the A Member, a member of A
Member's immediate family, or a business with which the A Member or a member of the
A Member's immediate family is associated, Section 1103(a) of the Ethics Act would not
prohibit such A Member from participating in or voting on matters involving the D's B
application.
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
Confidential Advice, 07 -542
June 1, 2007
Page 5
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,
Robin M. Hittie
Chief Counsel