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HomeMy WebLinkAbout08-512 BarnhardtChristine M. Sadler, Esquire First Assistant County Solicitor County of Berks Services Center, 13 Floor 633 Court Street Reading, PA 19601 -3584 Dear Ms. Sadler: ADVICE OF COUNSEL February 5, 2008 08 -512 This responds to your letters of December 21, 2007, and January 2, 2008, 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 county commissioner, whose spouse is employed by the county's court of common pleas and is a "confidential employee" of the county, with regard to: (1) participating in approving the county court's budget; (2) participating in approving the annual merit increase budget for all management /confidential employees of the county, which would include the spouse's increase as determined by her department head; (3) participating as a member of the county's salary board in any proposed reclassification of court department positions that would include the spouse's position; or (4) participating in discussions during weekly budget workshops that might include the issue of the county court's personnel costs. Facts: As the First Assistant County Solicitor for Berks County ( "County "), you have been authorized by Kevin Barnhardt ( "Barnhardt "), a newly - elected County Commissioner, to request an advisory from the State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Barnhardt will serve as one of three members of the County Board of Commissioners ( "the Board of Commissioners "). As a County Commissioner, Barnhardt will also serve as one of four members of the County Salary Board ( "the Salary Board "). Barnhardt's spo Pamela Barnhardt, is employed by the Berks County Court of Common Pleas, 23 Judicial District of Pennsylvania ( "the Court "), as a secretary to the Honorable John A. Boccabella. Although Mrs. Barnhardt is employed by the Court, she is a "confidential employee" of the County. Sadler, 08 -512 February 5, 2008 Page 2 You state that the annual budget approved by the Board of Commissioners lists the overall personnel costs for the Courts without listing specific salary information for individual employees. The annual merit increase budget for all County employees is approved by the Board of Commissioners. You state that individual merit increases for County employees are determined by the applicable department head. The Board of Commissioners does not approve merit increases for individual employees. The salary for Court employees is determined by the Salary Board. Based upon the above submitted facts, you pose the following specific questions: 1. Whether the Ethics Act would permit Barnhardt to participate in approving the Court's annual budget; 2. Whether the Ethics Act would permit Barnhardt to participate in approving the annual merit increase budget for all management /confidential employees, where: (a) said budget would include Mrs. Barnhardt's annual merit increase; and (b) the specific amount of Mrs. Barnhardt's increase would be set by her department head; 3. Whether the Ethics Act would permit Barnhardt to participate as a member of the Salary Board in any proposed reclassification of Court department positions that would include his spouse's position; and 4. Whether the Ethics Act would permit Barnhardt to participate in discussions during weekly budget workshops that might include the issue of the personnel costs of the Court. 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. Upon taking office as a County Commissioner, Barnhardt would become 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 Sadler, 08 -512 February 5, 2008 Page 3 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. "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 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." Sadler, 08 -512 February 5, 2008 Page 4 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. 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 inquiries, you are advised that Barnhardt's spouse is a member of his "immediate family" as that term is defined in the Ethics Act. Therefore, pursuant to Section 1103(a) of the Ethics Act, in his capacity as a County Commissioner /County Salary Board Member, Barnhardt would generally have a conflict of interest in matters that would financially impact him, his spouse, or a business with which he or his spouse is associated. In each instance of a conflict of interest, Barnhardt 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 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 and second specific inquiries, you are advised that pursuant to Section 1103(a) of the Ethics Act, Barnhardt would have a conflict of interest with regard to participating in approving: (1) those portions of the Court's annual budget that would financially impact his spouse; and (2) the annual merit increase budget that would include his spouse's annual increase, unless the class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. The submitted facts are insufficient to enable a conclusive determination as to whether such exclusion would be applicable to your first or second specific inquiry. The submitted facts do not indicate whether, as to either specific inquiry, there are other County employees who would be similarly situated to Mrs. Barnhardt as the result of Sadler, 08 -512 February 5, 2008 Page 5 relevant shared characteristics so as to form an appropriate class /subclass, and if so, whether all members of the class /subclass would be affected to the same degree" by the proposed action. Therefore, you are advised that when the "class /subclass" exclusion would not be applicable, Barnhardt would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in approving: (1) those portions of the Court's annual budget that would financially impact his spouse; and (2) the annual merit increase budget that would include his spouse's annual increase. In each instance of a conflict of interest, Barnhardt would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In response to your third specific inquiry, you are advised that in his capacity as a Salary Board Member, Barnhardt would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in any proposed reclassification of Court department positions that would financially impact his spouse, unless the de minimis exclusion or the class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. As noted above, in each instance of a conflict of interest, Barnhardt would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In response to your fourth specific inquiry, you are advised that Barnhardt would generally have a conflict of interest with regard to participating in his capacity as a public official in discussions as to matters that would financially impact his spouse. Depending upon the content of the discussions, such matters presenting a conflict of interest for Barnhardt could obviously include discussions as to the personnel costs of the Court. 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 County Code. Conclusion: Upon taking office as a County Commissioner for Berks County ( "County "), Kevin Barnhardt ( "Barnhardt ") would become a "public official" subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Barnhardt's spouse, Pamela Barnhardt ( "Mrs. ,Barnhardt"), who is employed by the Berks County Court of Common Pleas, 23 Judicial District of Pennsylvania ( "the Court "), as a secretary to the Honorable John A. Boccabella, and who is a "confidential employee" of the County, is a member of Barnhardt's "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in his capacity as a County Commissioner /County Salary Board Member, Barnhardt would generally have a conflict of interest in matters that would financially impact him, his spouse, or a business with which he or his spouse is associated. Barnhardt would have a conflict of interest with regard to participating in approving: (1) those portions of the Court's annual budget that would financially impact his spouse; and (2) the annual merit increase budget that would include his spouse's annual increase, unless the class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. In his capacity as a Salary Board Member, Barnhardt would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in any proposed reclassification of Court department positions that would financially impact his spouse, unless the de minimis exclusion or the class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. Barnhardt would generally have a conflict of interest with regard to participating in his capacity as a public official in discussions as to matters that would financially impact his spouse. In each instance of a conflict of interest, Barnhardt would be required to abstain fully from participation and to satisfy the disclosure requirements Sadler, 08 -512 February 5, 2008 Page 6 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. 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