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HomeMy WebLinkAbout07-543 COPPOLAGary Stewart Seflin, Esquire 30 West Third Street Media, PA 19063 Dear Mr. Seflin: ADVICE OF COUNSEL June 12, 2007 07 -543 This responds to your letters of April 24, 2007, and April 27, 2007, 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 prohibitions or restrictions upon a borough council member with regard to: (1) participating in matters involving the borough police department or serving on the borough public safety committee, which oversees the police department, where the council member's brother is the borough chief of police; or (2) voting to approve or disapprove the monthly borough treasurer's report where said report might include paychecks to the chief of police and retirement or pension benefit checks to the parents of the borough council member. Facts: As Solicitor for the Borough of Aldan ( "Borough "), you have been authorized by Borough Councilman Steven M. Coppola ( "Councilman Coppola ") to seek an advisory on his behalf from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. Councilman Coppola was appointed to Borough Council as of April 11, 2007. Councilman Coppola's brother, Kenneth J. Coppola, is the Borough Chief of Police, having served in that position since 1991. Chief Coppola has served with the Borough's police force for 30 years. You note that Chief Coppola's salary and benefits are set by a contract that was enacted prior to Councilman Coppola's appointment to Council. You have submitted a copy of the current 2006 -2010 Consolidated Agreement between Borough Council and the Fraternal Order of Police ( "FOP "). Councilman Coppola's father, James V. Coppola, is a former police officer for the Borough and receives pension benefits. Councilman Coppola's mother, Joan R. Coppola, also receives retirement benefits from the Borough, through her husband, in the form of cash payments in lieu of medical benefits. The retirement benefits of James Coppola were established through a settlement of a lawsuit in 1990. Seflin, 07 -543 June 12, 2007 Page 2 You ask whether, pursuant to Section 1103(a) of the Ethics Act, Councilman Coppola would be permitted to engage in the following activities: (1) Voting to approve or disapprove the monthly Treasurer's Report, which may include paychecks to his brother and retirement benefit checks to his parents; (2) Serving on the Public Safety Committee that oversees the Police Department and serves as the negotiating team with the FOP for collective bargaining issues; (3) Considering and voting upon issues dealing with the Police Department; and (4) Considering and voting upon issues dealing with the Chief of Police. You have advised Borough Council that Councilman Coppola may vote on ordinary business, such as paychecks to his brother contained within the Treasurer's Report. You have advised Councilman Coppola that he should not: (1) serve on the Public Safety Committee; (2) vote on or engage in discussions of any specific Council action regarding the Chief of Police; or (3) engage in any active negotiations with the FOP. However, you state that you have advised Councilman Coppola that if other members of the Borough Council negotiate a contract with the FOP, Councilman Coppola may vote upon a contract that contains across - the -board increases in benefits or salary for all officers or changes the salary and benefit structure for the Chief of Police. Finally, it is noted that you have submitted a copy of the Council Bylaws, which provide in part: § 8 -3. Standing committees. (4) The Public Safety Committee shall have supervision in all matters pertaining to the borough police force, as well as the supplies, equipment, materials and motor vehicles of same, subject to the authority delegated to the Mayor pursuant to the Pennsylvania Borough Code. This committee shall also have supervision in all matters pertaining to fire fighting, fire prevention, civil defense or emergency management, animal control and school crossing guards. Council Bylaws, Section 8- 3(C)(4) (Note omitted). 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. Seflin, 07 -543 June 12, 2007 Page 3 Councilman Coppola is a public official as that term is defined in the Ethics Act, and he is therefore 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 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. Seflin, 07 -543 June 12, 2007 Page 4 "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. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of the 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. The above statutory definition of "conflict" or "conflict of interest" contains two exclusions, referred to herein as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900. In order for the class /subclass exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90- 017); Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Subject to certain exceptions, Section 1103(j) of the Ethics Act requires a public official /public employee with a voting conflict 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 applying the above provisions of the Ethics Act to your inquiry, Councilman Coppola's brother, Chief Kenneth J. Coppola, father, James V. Coppola, and mother, Joan R. Coppola, are all clearly Councilman Coppola's "immediate family members" as that term is defined by the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, as a Borough Council Member, Councilman Coppola would generally have a conflict of interest in matters that would financially impact himself, any of his aforementioned immediate family members, or a business with which Councilman Coppola or a member of his immediate family is associated. In each instance of a conflict of interest, Councilman Coppola would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The requirement for abstention in the event of a conflict would extend not only to voting, but also to other uses of authority of Seflin, 07 -543 June 12, 2007 Page 5 office, such as discussing, conferring with others, or lobbying for a particular result. See, Juliante, Order 809. Having established the above general principles, your specific inquiries shall be addressed. In response to your first specific inquiry, you are advised as follows. The approval of pre- fixed, routine, uncontested bills does not in and of itself rise to the level of a violation of Section 1103(a) of the Ethics Act. See, Krushinski, Order 168; Yezzi, Order 825; Brooks, Opinion 89 -023; Maholick, Opinion 90 -010. Under the submitted facts that: (1) Chief Coppola's salary and benefits are set by a contract that was approved prior to Councilman Coppola's appointment to Council; and (2) Councilman Coppola's parents are paid retirement benefits pursuant to the settlement of a lawsuit in 1990, prior to Councilman Coppola's appointment to Council, you are advised that the inclusion on the monthly Borough Treasurer's Report of pre- fixed, routine, uncontested paychecks to Chief Coppola or retirement benefit payments to Councilman Coppola's parents would not in and of itself serve as the basis for a conflict of interest for Councilman Coppola under Section 1103(a) of the Ethics Act. Therefore, absent some other basis for a conflict of interest, Section 1103(a) of the Ethics Act would not prohibit Councilman Coppola from voting as to the approval of monthly Borough Treasurer's Reports that would include pre- fixed, routine, uncontested paychecks to Chief Coppola or retirement benefit payments to Councilman Coppola's parents. With respect to your second specific inquiry, it is noted that the Public Safety Committee oversees the Police Department and serves as the negotiating team with the FOP for collective bargaining issues involving the Police Department. As a practical matter, it would appear to be difficult for Councilman Coppola to serve on the Public Safety Committee without running afoul of Section 1103(a) of the Ethics Act. Issues that would financially impact Chief Coppola would generally present a conflict of interest for Councilman Coppola as noted below in the responses to your third and fourth inquiries. Additionally, based upon the Commission's ruling in Van Rensler, Opinion 90- 017, Councilman Coppola would be prohibited under Section 1103(a) of the Ethics Act from serving on the negotiating team for collective bargaining issues /agreements encompassing his brother. The issue in Van Rensler was whether the Ethics Act prohibited school directors from participating on a negotiating team and voting on a collective bargaining agreement where members of their immediate families were school district employees who were represented by the bargaining units. The Commission held that the school directors could vote on the finalized agreement as long as the prerequisites for applying the class /subclass exclusion were met. However, the Commission held that the Ethics Act would preclude the participation of such school directors in the negotiation process. In so holding, the Commission noted that the negotiation process would be free of any influence of such a school director and that the potential for the use of confidential information would be "minimized if not eliminated. ' Id., at 4 -5. Thus, a fundamental focus of the Van Rensler Opinion was precluding the use of confidential information obtained through the public office as school director to defeat the bargaining process. In the instant matter, Councilman Coppola would be prohibited from serving on the negotiating team for collective bargaining issues /agreements encompassing his brother. Additionally, you are advised that Councilman Coppola would be prohibited from voting on contract(s) encompassing his brother as Chief of Police. This is because, as Chief of Police, Councilman Coppola's brother would not be part of a class /subclass of similarly situated employees, but rather would be a unique member of the Police Department, such that the class /subclass exclusion would not be applicable. Cf., Confidential Opinion, 94 -009. Seflin, 07 -543 June 12, 2007 Page 6 As for our third and fourth specific inquiries, you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, Councilman Coppola would generally have a conflict of interest in matters that would financially impact Chief Coppola unless the de minimis exclusion or class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. In each instance of a conflict of interest, Councilman Coppola would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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 Borough Council Member for the Borough of Aldan ( "Borough "), Steven M. Coppola ( "Councilman Coppola ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Kenneth J. Coppola, who is the Borough Chief of Police and Councilman Coppola's brother, and James V. and Joan R. Coppola, who are Councilman Coppola's parents, are Councilman Coppola's "immediate family members" as that term is defined by the Ethics Act. Under the submitted facts that: (1) Chief Coppola's salary and benefits are set by a contract that was approved prior to Councilman Coppola's appointment to Council; and (2) Councilman Coppola's parents are paid retirement benefits pursuant to the settlement of a lawsuit in 1990, prior to Councilman Coppola's appointment to Council, the inclusion on the monthly Borough Treasurer's Report of pre - fixed, routine, uncontested paychecks to Chief Coppola or retirement benefit payments to Councilman Coppola's parents would not in and of itself serve as the basis for a conflict of interest as to Councilman Coppola's participation in the approval of such Treasurer's Reports. Pursuant to Section 1103(a) of the Ethics Act, Councilman Coppola would generally have a conflict of interest in matters that would financially impact Chief Coppola unless the de minimis exclusion or class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. It would appear to be difficult for Councilman Coppola to serve on the Borough's Public Safety Committee without running afoul of Section 1103(a) of the Ethics Act. Councilman Coppola would be prohibited under Section 1103(a) of the Ethics Act from serving on the negotiating team or voting as to collective bargaining issues /agreements encompassing his brother. In each instance of a conflict of interest, Councilman Coppola would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) 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. Seflin, 07 -543 June 12, 2007 Page 7 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