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HomeMy WebLinkAbout08-530 MoweryWarren R. Mowery, Jr. Assistant Counsel Pennsylvania Labor Relations Board 418 Labor and Industry Building Seventh and Forster Streets Harrisburg, PA 17120 Dear Mr. Mowery: ADVICE OF COUNSEL March 28, 2008 08 -530 This responds to your letter dated February 22, 2008, received February 28, 2008, and your faxed transmission of March 21, 2008, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose prohibitions or financial disclosure requirements upon an Assistant Counsel with the Pennsylvania Labor Relations Board ( "PLRB "), who is a member of the Labor and Employment Law Section ( "the Section ") of the Pennsylvania Bar Association ( "PBA "), with regard to attending a conference on labor and employment law to be held in Poland, where: (1) the Assistant Counsel's membership dues for the PBA and the Section are paid by the PLRB; (2) the Assistant Counsel's supervisor has approved of the Assistant Counsel's involvement in Section activities and presentations, including the Section's upcoming trips to Poland; (3) the Assistant Counsel would use personal or annual leave for the trip; (4) the Assistant Counsel's expenses for lodging and some meals would be paid by the sponsoring parties in Poland, and the remaining expenses, including those for travel and airfare, would be reimbursed by the Section; and (5) the Section members include attorneys who appear before the PLRB. Facts: As an Assistant Counsel with the PLRB, you request an advisory from the Pennsylvania State Ethics Commission. You have submitted a copy of your official position description, which is incorporated herein by reference. A copy of the job classification specifications for your position (job code 07130) has been obtained and is also incorporated herein by reference. Mowery, 08 -530 March 28, 2008 Page 2 You state that the PLRB is an independent agency under the Commonwealth Attorneys Act. Your duties as Assistant Counsel include drafting orders for the PLRB, defending such orders on appeal, and when necessary, enforcing such orders in court. You are a member of both the PBA and the Section. You currently serve as Secretary of the Section and as a member of the Section's Executive Council. You state that the PBA is a non - profit entity that does not directly receive any public monies. Although the Section is under the umbrella of the PBA, the Section is separately governed and separately funded through its own membership dues. You have submitted a copy of the Section's By -laws with proposed amendments, which document is incorporated herein by reference. Members of the Section include attorneys who are neutrals or who represent employers or unions. You state that some Section members appear before the PLRB as counsel for public sector employers or unions. Although membership in the PBA and the Section is not a requirement of your employment with the PLRB, you state that membership in the PBA and the Section is beneficial to your job. The three Members of the PLRB are aware of your involvement with the PBA and the Section, and the PLRB pays your annual dues for such membership. However, you state that the Section's activities and presentations are independent of your employment with the PLRB. You state that the Section has cooperated with entities in Poland for the past several years to provide insight into collective bargaining, grievance and labor arbitration dispute resolution, and other aspects of labor and employment law. You further state that the Section has recently been asked by the Rule of Law Institute and The John Paul 11 Catholic University of Lublin to participate in a conference and courses to be held in Lublin, Poland in April 2008 (hereinafter also referred to as the Conference "). You have submitted a copy of a document describing the Rule of Law Institute. You have also submitted a copy of an email that describes the agenda for the Conference. You state that the Section's presentations in Poland are geared toward generalities of American and Polish law, dispute resolution processes, and collective bargaining, and not specifically to Pennsylvania's public sector labor laws. While you have not attended such conferences in the past, you are being urged to participate this year. You state that as in the past, the sponsoring parties in Poland would contribute to a Section member's expenses for lodging and some meals, and the Section would reimburse the member's remaining expenses, including those for travel and airfare. You state that since your involvement with the Section is not related to your employment with the PLRB, the Members of the PLRB have not taken any formal action at a Board meeting to approve your participation in specific Section activities. However, you state that your supervisor at the PLRB has approved of your involvement in Section activities and presentations, including the Section's upcoming trips to Poland. You state that if you would attend the Conference, you would use your personal or annual leave for the trip. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit you from attending the Conference, and if not, whether the trip would result in obligations for related financial disclosure on your Statement of Financial Interests. 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 Mowery, 08 -530 March 28, 2008 Page 3 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. It is further initially noted that your advisory request has posed certain specific questions, and this advisory is limited in scope to addressing those particular questions. As an Assistant Counsel for the PLRB, you are a public employee subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 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). The following terms pertaining to conflicts of interest 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. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. Mowery, 08 -530 March 28, 2008 Page 4 Section 1105(b) of the Ethics Act, which sets forth the substantive disclosure requirements for Statements of Financial Interests, provides, in pertinent part, as follows: § 1105. Statement of financial interests (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (7) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $650 in an aggregate amount per year. This paragraph shall not apply to expenses reimbursed by a governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. 65 Pa.C.S. § 1105(b)(7). The Ethics Act defines the term "governmental body" as follows: § 1102. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the questions presented. Having established the above general principles, you are advised as follows. Based upon the submitted facts, Section 1103(a) of the Ethics Act would not prohibit you from attending the Conference. As a public employee subject to the Ethics Act, you are subject to the financial disclosure requirements of Sections 1104 and 1105 of the Ethics Act. Subject to certain Mowery, 08 -530 March 28, 2008 Page 5 statutory exceptions in Section 1105(b)(7) of the Ethics Act (pertaining to payments /reimbursements by a governmental body or by an organization or association of public officials or employees of political subdivisions served by the filer in an official capacity), you would be required to disclose in block 12 of your Statement of Financial Interests the name and address of each source and the amount of each payment /reimbursement by the source for transportation, lodging, or hospitality received in connection with your public position if the aggregate amount of such payments /reimbursements by the source would exceed $650 for the calendar year for which you would be reporting. For reasons including the fact that the PLRB pays your membership dues for membership in the PBA and the Section, payments /reimbursements for transportation, lodging, or hospitality in relation to your attendance at the Conference would be considered received in connection with your public employment with the PLRB and would be subject to financial disclosure on your Statement of Financial Interests to the extent the reporting threshold would be met and the statutory exceptions would not apply. You are advised that meals, beverages, and recreation and entertainment would constitute hospitality rather than gifts. See, 65 Pa. C. S. §§ 1102, 1303- A/13A03. Act. The propriety of the proposed conduct has only been addressed under the Ethics Conclusion: As an Assistant Counsel for the Pennsylvania Labor Relations Board ( "PLRB "), you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) you are a member of both the Pennsylvania Bar Association ( "PBA ") and the PBA's Labor and Employment Law Section ( "the Section "); (2) your membership dues for the PBA and the Section are paid by the PLRB; (3) the Section has cooperated with entities in Poland for the past several years to provide insight into collective bargaining, grievance and labor arbitration dispute resolution, and other aspects of labor and employment law; (4) the Section has recently been asked by the Rule of Law Institute and The John Paul 11 Catholic University of Lublin to participate in a conference and courses to be held in Lublin, Poland in April 2008 (hereinafter also referred to as the Conference "); (5) your supervisor at the PLRB has approved of your involvement in Section activities and presentations, including the Section's upcoming trips to Poland; (6) if you would attend the Conference, you would use personal or annual leave for the trip; (7) if you would attend the Conference, your expenses for lodging and some meals would be paid by the sponsoring parties in Poland, and the remaining expenses, including those for travel and airfare, would be reimbursed by the Section; and (8) the Section members include attorneys who appear before the PLRB, you are advised as follows. Based upon the submitted facts, Section 1103(a) of the Ethics Act would not prohibit you from attending the Conference. Subject to certain statutory exceptions in Section 1105(b)(7) of the Ethics Act (pertaining to payments /reimbursements by a governmental body or by an organization or association of public officials or employees of political subdivisions served by the filer in an official capacity), you would be required to disclose in block 12 of your Statement of Financial Interests the name and address of each source and the amount of each payment /reimbursement by the source for transportation, lodging, or hospitality received in connection with your public position if the aggregate amount of such payments /reimbursements by the source would exceed $650 for the calendar year for which you would be reporting. For reasons including the fact that the PLRB pays your membership dues for membership in the PBA and the Section, payments /reimbursements for transportation, lodging, or hospitality in relation to your attendance at the Conference would be considered received in connection with your public employment with the PLRB and would be subject to financial disclosure on your Statement of Financial Interests to the extent the reporting threshold would be met and the statutory exceptions would not apply. Mowery, 08 -530 March 28, 2008 Page 6 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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