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HomeMy WebLinkAbout08-532 BrazilJohn J. Brazil, Jr., Esquire 310 -312 Adams Avenue, Suite 200 Scranton, PA 18503 Dear Mr. Brazil: ADVICE OF COUNSEL April 4, 2008 08 -532 This responds to your letters dated February 19, 2008, and February 27, 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 present any prohibitions or restrictions upon a borough council member with regard to voting on the borough payroll, where: (1) the payroll would include the compensation paid to the borough council member's mother as borough administrator; (2) such compensation would have previously been set by borough council without the borough council member's involvement; (3) such compensation would not include overtime pay; and (4) such compensation would be the same every pay period. Facts: As Solicitor for the Borough of Moosic, ( "Borough "), you have been authorized by a Borough Council Member (hereinafter referred to as the Council Member ") to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Council Member was elected to Borough Council in 2007 and was sworn into office on January 7, 2008. For more than ten years prior to the Council Member taking office, the Council Member's mother served as the Borough Secretary. You state that the Council Member's mother had also been essentially performing the functions of the vacant position of Borough Manager for approximately eight months. At its first meeting in January 2008, Borough Council passed an ordinance that repealed the position of Borough Manager. Borough Council also passed a resolution that created the Office of Borough Administrator. Borough Council set the salary for the Borough Administrator position as the same salary previously set for the Borough Manager position. You state that the position of Borough Administrator essentially encompasses most of the duties of a borough manager. Brazil, 08 -532 April 4, 2008 Page 2 At that same January 2008 meeting, Borough Council voted to appoint the Council Member's mother as the Borough Administrator. You state that the Council Member abstained from voting on creating the Borough Administrator position, on appointing his Mother to such position, and on setting the salary for such position. In addition to abstaining, the Council Member set forth his reasons for abstaining, specifically, that his Mother was the individual being appointed to the Borough Administrator position. Borough Council must approve the Borough payroll on a monthly basis. The monthly Borough payroll encompasses all salaries paid by the Borough during a particular month, including the salary paid to the Council Member's mother as Borough Administrator. You state that the salary of the Council Member's mother as Borough Administrator is the same every pay period, and she is not entitled to and does not receive overtime pay. You note that to date, the Council Member has been advised to abstain from participating in approving the Borough payroll and to set forth the reasons for his abstention. Under the above submitted facts, you ask whether the Ethics Act would permit the Council Member to vote on the Borough payroll on a monthly basis. 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 an elected Borough Council Member, the Council Member on whose behalf you have inquired 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. (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 Brazil, 08 -532 April 4, 2008 Page 3 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 related to Section 1103(a) 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, a 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. See, 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 Brazil, 08 -532 April 4, 2008 Page 4 provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to your inquiry you are advised that the Council Member's mother 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 Borough Council Member, the Council Member would generally have a conflict of interest in matters that would financially impact his mother. In each instance of a conflict of interest, the Council Member would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In the instance of a voting conflict, Council Member would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. With regard to your specific inquiry, you are advised that the approval of pre- fixed, routine, uncontested bills /obligations does not in and of itself rise to the level of a violation of Section 1103(a) of the Ethics Act. See, Kistler, Order 1441; Yezzi, Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89 -023; Maholick, Opinion 90 -010. Therefore, subject to the conditions that: (1) the Council Member would abstain fully from participation in matters pertaining to the determination of the compensation for his mother as Borough Administrator or in any other capacity; and (2) the compensation to be paid to the Council Member's mother would be pre- fixed, routine, and uncontested, and would not include any amounts that would not be pre- fixed, routine, and uncontested, the Council Member would not have a conflict of interest in voting on a Borough payroll that would include payment of such compensation to the Council Member's mother. The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: The Borough Council Member (hereinafter referred to as the Council Member ") for the Borough of Moosic ( "Borough ") on whose behalf you have inquired 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. The Council Member's mother, who serves as the Borough Administrator, is a member of the Council Member'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 Borough Council Member, the Council Member would generally have a conflict of interest in matters that would financially impact his mother. In each instance of a conflict of interest, the Council Member would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In the instance of a voting conflict, the Council Member would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The approval of pre - fixed, routine, uncontested bills /obligations does not in and of itself rise to the level of a violation of Section 1103(a) of the Ethics Act. Subject to the conditions that: (1) the Council Member would abstain fully from participation in matters pertaining to the determination of the compensation for his mother as Borough Administrator or in any other capacity; and (2) the compensation to be paid to the Council Member's mother would be pre- fixed, routine, and uncontested, and would not include any amounts that would not be pre- fixed, routine, and uncontested, the Council Member would not have a conflict of interest in voting on a Borough payroll that would include payment of such compensation to the Council Member's mother. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Brazil, 08 -532 April 4, 2008 Page 5 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