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HomeMy WebLinkAbout08-562 CONFIDENTIALADVICE OF COUNSEL July 14, 2008 08 -562 This responds to your letter of June 9, 2008, by which you requested confidential 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 Member of Governmental Body B for Political Subdivision C with regard to participating in matters before Governmental Body B involving Institution D, where the Member's daughter is an E at Institution D and is employed by Institution D on an irregular and periodic basis. Facts: As Solicitor for Political Subdivision C, you have been authorized by Public fficial A to request a confidential advisory from the Pennsylvania State Ethics Commission on her behalf, based upon the following submitted facts. Public Official A serves as a Member of Governmental Body B. Institution D is located within Political Subdivision C. Matters involving Institution D come before Governmental Body B from time to time, particularly matters involving land development projects undertaken by Institution D that require the approval of Governmental Body B pursuant to the Pennsylvania Municipalities Planning Code. Public Official A's daughter is an E at Institution D. In the past, Public Official A's daughter has been employed by Institution D on an irregular and periodic basis. You state that although Public Official A's daughter was not employed by Institution D as of the date of your advisory request letter, she intends to hold part -time temporary employment with Institution D during the [season] of 2008 and may accept part -time employment with Institution D in the future while remaining an E at Institution D. In 2007, Public Official A's daughter was paid [monetary amount] for her employment with Institution D. You have posed the following questions: (1) Whether, in light of the "class /subclass exclusion" to the definition of "conflict of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, Public Official A would have a conflict of interest and would be required to abstain from matters involving Institution D due to Public Official A's daughter's status as an E at Institution D; Confidential Advice, 08 -562 July 14, 2008 Page 2 (2) Whether Public Official A would have a conflict of interest and would be required to abstain from matters involving Institution D due to Public Official A's daughter's irregular, periodic employment by Institution D, if the daughter does not have any duties or work hours with Institution D at the time a given matter is pending before Governmental Body B but may have employment with Institution D in the future; and Whether Public Official A would have a conflict of interest and would be required to abstain from matters involving Institution D due to Public Official A's daughter's irregular, periodic employment by Institution D where the daughter earned [monetary amount] from such employment last year. You state your view that the "class /subclass exclusion" to the definition of "conflict of interest" as set forth in Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, would be applicable to your first question, involving Public Official A's daughter's status as an E at Institution D, and you ask whether Public Official A's daughter's periodic employment with Institution D would be considered "de minimis." (3) In addition to the facts that you have submitted, administrative notice is taken of the fact that Institution D is a private institution. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. As a Member of Governmental Body B, Public Official A 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 Confidential Advice, 08 -562 July 14, 2008 Page 3 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. "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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Confidential Advice, 08 -562 July 14, 2008 Page 4 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 provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. The above statutory definition of "conflict" or "conflict of interest" includes two exclusions, referred to herein as the "de minimis exclusion" and the "class /subclass exclusion." 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 applying the above provisions of the Ethics Act to the questions that you have posed, you are advised that Public Official A's daughter is a member of Public Official A's "immediate family" as that term is defined in the Ethics Act. You are further advised that Public Official A's daughter's status as an E at Institution D would not make Institution D a business with which the daughter is associated. Therefore, Public Official A's daughter's status as an E at Institution D would not form the basis for a conflict of interest for Public Official A in matters before Governmental Body B involving Institution D. Confidential Advice, 08 -562 July 14, 2008 Page 5 However, at such times as Public Official A's daughter would be employed by Institution D, Institution D would be considered a business with which the daughter is associated, and generally, that employment relationship would form the basis for Public Official A to have a conflict of interest in matters before Governmental Body B involving Institution D. The de minimis exclusion set forth in the Ethics Act's definition of "conflict of interest" would be irrelevant to a determination of whether Institution D would be considered a business with which Public Official A's daughter is associated. To the extent that Public Official A's daughter would not be employed by Institution D at a given time, but would reasonably anticipate having future employment with Institution D, the daughter's reasonable expectation of an employment relationship with Institution D generally would form the basis for Public Official A to have a conflict of interest in matters before Governmental Body B involving Institution D. Amato, Opinion 89 -002. To the extent you appear to suggest that the overall economic impact upon the daughter from her periodic employment with Institution D would be de minimis, you are advised that there is no basis for this advisory to reach such a conclusion. Based upon the above, you are advised that at such times as Public Official A's daughter either would be employed by Institution D or would reasonably anticipate having future employment with Institution D, Public Official A would have a conflict of interest in matters before Governmental Body B involving Institution D. In each instance of a conflict of interest, Public Official A would be required to abstain fully from participation, and, in each instance of a voting conflict, to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of Code F. Conclusion: As a Member of Governmental Body B for Political Subdivision C, Public Official A 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. Public Official A's daughter is a member of Public Official A's "immediate family" as that term is defined in the Ethics Act. Under the submitted facts that: (1) Institution D is located within Political Subdivision C; (2) matters involving Institution D come before Governmental Body B from time to time; (3) Public Official A's daughter is an E at Institution D; and (4) Public Official A's daughter is employed by Institution D on an irregular and periodic basis, you are advised as follows. Public Official A's daughter's status as an E at Institution D would not form the basis for a conflict of interest for Public Official A in matters before Governmental Body B involving Institution D. At such times as Public Official A's daughter either would be employed by Institution D or would reasonably anticipate having future employment with Institution D, Public Official A generally would have a conflict of interest in matters before Governmental Body B involving Institution D. In each instance of a conflict of interest, Public Official A would be required to abstain fully from participation, and, in each instance of a voting conflict, to abstain and to satisfy the disclosure requirements 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) 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. Confidential Advice, 08 -562 July 14, 2008 Page 6 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