PRINTER'S NO. 688
No. 636 Session of 1979
INTRODUCED BY A. C. FOSTER, JR., M. H. GEORGE, WEIDNER,
SIRIANNI, DIETZ, PUNT AND E. Z. TAYLOR, MARCH 12, 1979
REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, MARCH 12, 1979
AN ACT
1 Amending the act of February 1, 1966 (1965 P.L.1656, No.581),
2 entitled "An act concerning boroughs, and revising, amending
3 and consolidating the law relating to boroughs," adding
4 provisions relating to conflict of interest and standards of
5 ethics involving borough officers and employes.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 1404, act of February 1, 1966 (1965
9 P.L.1656, No.581), known as "The Borough Code," is amended to
10 read:
11 Section 1404. Penalty for Personal Interest in Contracts or
12 Purchases.--Except as otherwise provided in this act, no borough
13 official either elected or appointed, who knows or who by the
14 exercise of reasonable diligence could know, shall be interested
15 to any appreciable degree either directly or indirectly in any
16 purchase made or contract entered into or expenditure of money
17 made by the borough or relating to the business of the borough,
18 involving the expenditure by the borough of more than one
19 thousand dollars ($1000) in any calendar year, but this
1 limitation shall not apply to cases where such officer or
2 appointee of the borough is an employe of the person, firm or
3 corporation to which the money is to be paid in a capacity with
4 no possible influence on the transaction, and in which he cannot
5 be possibly benefited thereby either financially or otherwise.
6 But in the case of a councilman or mayor, if he knows that he is
7 within the exception just mentioned he shall so inform council
8 and shall refrain from voting on the expenditure or any
9 ordinance relating thereto, and shall in no manner participate
10 therein. Any official or appointee who shall knowingly violate
11 the provisions of this section shall be subject to surcharge to
12 the extent of the damage shown to be thereby sustained by the
13 borough and to ouster from office, and shall be guilty of a
14 misdemeanor, and upon conviction thereof shall be sentenced to
15 pay a fine not exceeding one thousand dollars ($1000), or not
16 exceeding [one hundred eighty days'] one year imprisonment, or
17 both.
18 Section 2. The act is amended by adding an article to read:
19 ARTICLE XXXIV-A
20 CONFLICT OF INTEREST; ETHICAL STANDARDS
21 FOR OFFICERS AND EMPLOYES
22 Section 3401-A. Scope.--This article shall not repeal or
23 supersede any other provision of this code or lessen any
24 prohibition or standards of conduct required thereunder. The
25 intent of this article is to deal with and cover situations not
26 previously covered.
27 Section 3402-A. Definitions.--As used in this article,
28 unless the context clearly indicates otherwise, the following
29 words shall be construed as follows:
30 (1) "Agency," any department, bureau, authority, commission,
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1 board or other governmental body including borough council
2 within or established by a borough including a borough governed
3 by a Home Rule Charter.
4 (2) "Appointed officer," (i) an individual holding office,
5 named in this code or in any other act of the Commonwealth, to
6 which he is named by borough council, whether that individual
7 serves full time or part time, whether or not he receives
8 compensation from the borough for his services; and whether or
9 not he holds a single named office or is one of several
10 individuals serving on a board, commission or authority, (ii) an
11 individual employed by the borough on a full-time or part-time
12 basis, exercising supervisory authority over any other borough
13 employe and/or performing nonministerial action in connection
14 with borough affairs.
15 (3) "Business," (i) any corporation, partnership, sole
16 proprietorship, firm, enterprise, franchise, association, self-
17 employed individual, holding company, joint-stock company,
18 receivership, trust or any entity organized for profit, (ii) any
19 nonprofit corporation or organization in which an individual is
20 employed or holds office.
21 (4) "Business with which he is connected," any business in
22 which the person or a member of the person's immediate family is
23 a director, officer, owner, employe, or holder of stock.
24 (5) "Elected officer," an individual holding an elected
25 borough office.
26 (6) "Employe," an individual employed by the borough on a
27 full-time or part-time basis and not coming within the
28 definition of "elected officer" or "appointed officer."
29 (7) "Gift," a payment, advance, forbearance, rendering or
30 deposit of money, services or anything of value, unless
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1 consideration of equal or greater value is received by the
2 donor, but shall not include: (i) a political contribution
3 otherwise reported as required by law, (ii) a commercially
4 reasonable loan made in the ordinary course of business, or
5 (iii) a gift received from a relative.
6 (8) "Immediate family," the spouse of an individual and
7 those related by blood, adoption or marriage who are full-time
8 residents of that individual's household.
9 (9) "Individual," a natural person.
10 (10) "Ministerial action," an action that an individual
11 performs in a prescribed manner in obedience to the mandate of
12 legal authority, whether by law, ordinance, regulation or the
13 instructions of a superior, and without regard to, or the
14 exercise of, the individual's own judgment as to the
15 desirability of the action being taken.
16 (11) "Nonministerial action," an action that an individual
17 performs as part of his official powers, duties, authority or
18 functions, in which he has authority to exercise discretion or
19 judgment as to the legality or desirability of the action being
20 taken.
21 (12) "Person," an individual, partnership, association or
22 corporation, firm, committee, club or other organization or
23 group of persons.
24 (13) "Relative," a member of an individual's immediate
25 family and also that individual's father, mother, grandfather,
26 grandmother, son, daughter or sibling, whether by blood,
27 adoption or marriage, the latter including, for example,
28 stepparents, stepchildren and half brothers and half sisters.
29 (14) "Valuable," having a value of more than twenty-five
30 dollars ($25).
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1 (15) "Value," the intrinsic worth, expressed in dollars, of
2 anything, if that worth is known or easily obtainable; otherwise
3 a good faith estimate of that worth.
4 Section 3403-A. Financial Gain from Borough Office or
5 Employment Prohibited.--No elected or appointed officer and no
6 employe shall use his borough office or employment in order to
7 obtain any financial gain for himself, any relative of his or
8 any business with which he is connected. "Financial gain" shall
9 not apply to or include the authorized salary or other
10 compensation paid that individual by the borough and applicable
11 to his office, position, rank or class.
12 Section 3404-A. Acceptance of Valuable Things Based upon
13 Certain Understanding.--It shall be unlawful for any elected or
14 appointed officer, or for any employe, or for any candidate for
15 elected office, to solicit or accept from any other person, or
16 to allow any of his relatives or any business with which he is
17 connected to solicit or accept any valuable thing, including a
18 gift, loan, political contribution or reward, based upon an
19 understanding that the vote, official action or judgment or the
20 recipient will be influenced by that action.
21 Section 3405-A. Representation of Persons Before Borough
22 Agencies.--It shall be unlawful for any elected or appointed
23 officer or for any employe to appear on behalf of another person
24 before any agency of the borough, or to represent any person in
25 any action or proceeding against the interests of the borough in
26 any litigation to which the borough is a party. No former
27 elected official, appointed officer or employe shall represent
28 another person before any agency of the borough for one year
29 after he leaves that body.
30 Section 3406-A. Disclosure or Use of Confidential
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1 Information.--It shall be unlawful for any elected or appointed
2 officer or for any employe, without proper authorization, to
3 disclose confidential information concerning the property,
4 government or affairs of the borough. Nor shall any such officer
5 or employe use that information to advance the financial,
6 personal or private interest of himself or any other person.
7 Section 3407-A. Restrictions on Incompatible Employment or
8 Service.--It shall be unlawful for any elected or appointed
9 officer or for any employe to engage in or accept employment or
10 to render services for any public or private agency or entity
11 when that employment or service would conflict with the proper
12 and impartial discharge of his official or designated or
13 assigned duties for the borough, or would tend to impair his
14 independence of judgment or action in the performance of those
15 borough duties.
16 Section 3408-A. Partiality and Favoritism Unlawful.--In the
17 conduct of his official duties, or in the exercise of his
18 authority under the borough government, no elected or appointed
19 officer, and no employe, shall grant any special favor or
20 consideration to any person or individual beyond that which is
21 available to every other person or individual, other than
22 through the exercise of specific legislative, administrative or
23 judicial authority vested in his office or position
24 individually, or as a member of an executive, legislative,
25 judicial or administrative agency of the borough.
26 Section 3409-A. Restrictions on Use of Public Property.--It
27 shall be unlawful for any elected or appointed officer or for
28 any employe to use or to request or permit the use of any
29 vehicle, equipment, material or property owned or under the
30 control of the borough for the convenience or profit to himself
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1 or any relative or business associate, except under conditions
2 when that use is available to the public generally or is
3 provided as borough policy.
4 Section 3410-A. Penalty for Violation.--Any person who
5 violates sections 3403-A and 3404-A of this article shall be
6 guilty of a felony and upon conviction, shall be sentenced to
7 pay a fine of not more than ten thousand dollars ($10,000) or to
8 imprisonment for not more than five years or both. Any person
9 who violates sections 3405-A, 3406-A, 3407-A, 3408-A and 3409-A
10 of this article shall be guilty of a misdemeanor and, upon
11 conviction shall be sentenced to pay a fine of not more than one
12 thousand dollars ($1,000) or imprisoned for not more than one
13 year. If that person is an elected or appointed officer, he
14 shall be subject to surcharge to the extent of the damage shown
15 to be sustained by the borough from his unlawful act, and also
16 to removal from his office or position.
17 Section 3411-A. Referendum.--(a) Upon petition to the
18 county board of elections of at least ten percent of the
19 electors of the borough, a question shall be placed on the
20 ballot at any municipal election to determine the will of the
21 electors thereof with respect to the application of the act of
22 October 4, 1978 (P.L.883, No.170), referred to as the Public
23 Official and Employee Ethics Law, in the borough. Petitions
24 shall be submitted to the county board of elections and shall be
25 governed, to the extent consistent with this section, by the
26 deadlines and procedures required for submission of nomination
27 petitions by candidates seeking elective municipal office:
28 Provided, however, That said petitions shall be submitted prior
29 to the municipal election rather than the primary. Said petition
30 shall be submitted, the referendum thereon conducted and the
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1 results thereon certified in the manner provided by the election
2 laws of this Commonwealth.
3 (b) The question shall be in the following form:
4 Do you favor the application of the Yes
5 State Public Official and Employee Ethics
6 Law to the ___________ Borough? No
7 (c) If a majority of the electors voting on the question
8 vote "yes," then the act of October 4, 1978 (P.L.883, No.170),
9 referred to as the Public Official and Employee Ethics Law shall
10 apply to the borough and the other provisions of this article
11 shall not apply.
12 (d) Until there is an affirmative vote under subsection (c)
13 on the question presented in subsection (b), the act of October
14 4, 1978 (P.L.883, No.170), referred to as the Public Official
15 and Employee Ethics Law shall not apply to borough officials,
16 borough employes, candidates for borough office and their
17 immediate families and businesses with which they are connected.
18 Section 3412-A. Borough Code of Ethics.--(a) A borough may
19 adopt by ordinance a code of ethics for borough officers and
20 employes. The code may contain provisions relating to ethical
21 standards, including conflict of interest and disclosure
22 requirements and shall be no less restrictive than this article.
23 Any code of ethics adopted pursuant to this section may be more
24 restrictive than the act of October 4, 1978 (P.L.883, No.170),
25 referred to as the Public Official and Employee Ethics Law.
26 (b) A Borough Code of Ethics shall supersede any other
27 similar provisions of this act.
28 Section 3. This act shall take effect immediately.
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