HomeMy WebLinkAbout08-503 ConfidentialADVICE OF COUNSEL
January 15, 2008
08 -503
This responds to your letter received December 7, 2007, by which you requested
confidential 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 an A, whose
daughter -in law is employed as a B by the [political subdivision], as to: (1) participating
in or receiving briefings and updates on contract negotiations between the [political
subdivision and the Bs' union; or (2) voting on a contract between the [political
subdivision] and the Bs' union.
Facts: You are beginning your [number] [time - length] term as an A for Political
Subdivision C. Your daughter -in -law, Individual D, is employed as a B by Political
Subdivision C. You state that negotiations between the Political Subdivision C Board E
and the Bs' union will begin in the coming months of the current F.
Based upon the above submitted facts, you pose the following specific questions:
1. Whether the Ethics Act would permit you to sit in on any and all briefings and
updates on the negotiations process;
2. Whether the Ethics Act would permit you to be involved in the negotiations
process, such as by participating on Board E's negotiations team; and
3. Whether the Ethics Act would permit you to vote on a negotiated and agreed -
upon contract at a public meeting of Board E.
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.
Confidential Advice, 08 -503
January 15, 2008
Page 2
As an A for Political Subdivision C, 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.
(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.
Confidential Advice, 08 -503
January 15, 2008
Page 3
"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 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 use of authority of office is not limited merely to voting, but extends 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 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 the instant matter, you are
advised as follows.
Subject to the statutory exceptions to the definition of "conflict" or "conflict of
interest," pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest in matters before Board E that would financially impact you, a member of your
immediate family, or a business with which you or a member of your immediate family is
associated. As noted above, the term "immediate family" is defined to include a parent,
spouse, child, brother or sister. Your daughter -in -law, Individual D, is not a member of
your immediate family. Since your daughter -in -law is not a member of your immediate
family, you would not have a conflict of interest under Section 1103(a) of the Ethics Act
in matters before Board E that would financially impact your daughter -in -law but that
would not financially impact you, a member of your immediate family, or a business with
which you or a member of your immediate family is associated.
Turning to your specific inquiries, you are advised that absent some basis for a
conflict of interest other than your daughter -in -law's employment as a B with Political
Subdivision C, Section 1103(a) of the Ethics Act would not prohibit you from: (1)
receiving briefings and updates on contract negotiations between Political Subdivision C
and the Bs' union; (2) being involved in the negotiations process and /or participating on
Board E's negotiations team; or (3) voting on a contract between Political Subdivision C
and the Bs' union.
Lastly, 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 G.
Confidential Advice, 08 -503
January 15, 2008
Page 4
Conclusion: As an A for Political Subdivision C, 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. Subject to the statutory exceptions to the definition of "conflict"
or "conflict of interest,' pursuant to Section 1103(a) of the Ethics Act, you would have a
conflict of interest in matters before Board E that would financially impact you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated. Your daughter -in -law, Individual D, is not a member of
your "immediate family" as that term is defined in the Ethics Act. Since your daughter -
in -law is not a member of your immediate family, you would not have a conflict of
interest under Section 1103(a) of the Ethics Act in matters before Board E that would
financially impact your daughter -in -law but that would not financially impact you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated. Absent some basis for a conflict of interest other than
your daughter -in -law's employment as a B with Political Subdivision C, Section 1103(a)
of the Ethics Act would not prohibit you from: (1) receiving briefings and updates on
contract negotiations between Political Subdivision C and the Bs' union; (2) being
involved in the negotiations process and /or participating on Board E's negotiations
team; or (3) voting on a contract between Political Subdivision C and the Bs' union.
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,
Robin M. Hittie
Chief Counsel