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HomeMy WebLinkAbout08-515 JOSEPHJoseph M. Joseph, Esquire Douglas & Joseph 409 North Hermitage Road Hermitage, PA 16148 Dear Mr. Joseph: ADVICE OF COUNSEL February 12, 2008 08 -515 This responds to your letter received January 10, 2008, by which you requested an advisory 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, whose son -in -law is employed by the borough as a street department worker, with regard to voting on issues pertaining to the sale of the borough's water treatment plant to a private water supplier, where the borough council member's son -in- law, as the least senior member of the collective bargaining unit that covers the borough's water treatment plant employees and street department workers, could be laid off if the borough's water treatment plant would be sold. Facts: As Solicitor for the Borough of Sharpsville ( "Borough ") in Mercer County, Pennsylvania, you have been authorized by Robert K. Piccirilli ( "Piccirilli "), a Borough Council Member, to request an advisory from the State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Borough owns and operates a water treatment plant ( "the Plant ") and a water distribution system, both of which are located within the Borough boundaries. The Borough currently employs six full -time hourly employees to operate the Plant and seven additional hourly employees in the Borough Street Department ( "Street Department "). You state that the duties of the Plant employees and the Street Department employees sometimes overlap. All employees of the Plant and the Street Department are members of the AFSCME collective bargaining unit ( "the Bargaining Unit'). Piccirilli's son -in -law, who is employed as an hourly Street Department worker, is the least senior member of the Bargaining Unit. The Borough is considering building a new water treatment plant or, in the alternative, selling the Plant and water distribution system to a private water supplier. You state that if the Plant would be sold, Piccirilli's son -in -law, as the least senior Joseph, 08 -515 February 12, 2008 Page 2 member of the Bargaining Unit, could be laid off. You state, however, that pursuant to the terms of the AFSCME Collective Bargaining Agreement, Piccirilli's son -in -law would have the right of recall within three years of being laid off. You state that the Borough Code requires the Borough to adopt an ordinance if it is going to sell the Plant and the water distribution system. Borough Council consists of seven Members. Based upon the above submitted facts, you ask whether the Ethics Act would permit Piccirilli to vote as a Borough Council Member on issues pertaining to the sale of the Plant. 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 Borough Council Member, Piccirilli is 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. 65 Pa.C.S. §§ 1103(a), (j). (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. Joseph, 08 -515 February 12, 2008 Page 3 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 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, Piccirilli would have a conflict of interest in matters before Borough Council that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the term "immediate family" is defined to include a parent, spouse, child, brother or sister. Piccirilli's son -in -law is not a member of his Joseph, 08 -515 February 12, 2008 Page 4 immediate family. Since Piccirilli's son -in -law is not a member of his immediate family, Piccirilli would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact his son -in -law but that would not financially impact Piccirilli, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Turning to your specific inquiry, you are advised that absent some basis for a conflict of interest other than the employment of Piccirilli's son -in -law with the Street Department, Section 1103(a) of the Ethics Act would not prohibit Piccirilli from voting on issues pertaining to the sale of the Plant. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Council Member for the Borough of Sharpsville ( "Borough ") in Mercer County, Pennsylvania, Robert K. Piccirilli ( "Piccirilli ") 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. Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest," pursuant to Section 1103(a) of the Ethics Act, Piccirilli would have a conflict of interest in matters before Borough Council that would financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Piccirilli's son -in -law is not a member of his "immediate family" as that term is defined in the Ethics Act. Since Piccirilli's son -in -law is not a member of his immediate family, Piccirilli would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Borough Council that would financially impact his son -in -law but that would not financially impact Piccirilli, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Under the submitted facts that: (1) the Borough is considering selling the water treatment plant ( "the Plant ") owned by the Borough; (2) all employees of the Plant and the Borough Street Department ( "Street Department ") are members of the AFSCME collective bargaining unit ( "Bargaining Unit "); (3) the duties of the Plant employees and the Street Department employees sometimes overlap; (4) Piccirilli's son -in -law is employed with the Street Department; and (5) as the least senior member of the Bargaining Unit, Piccirilli's son -in -law might be laid off if the Plant is sold, you are advised as follows. Absent some basis for a conflict of interest other than the employment of Piccirilli's son -in -law with the Street Department, Section 1103(a) of the Ethics Act would not prohibit Piccirilli from voting on issues pertaining to the sale of the Plant. 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, Joseph, 08 -515 February 12, 2008 Page 5 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