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HomeMy WebLinkAbout08-588 StickGerald Stick 859 N. Charlotte Street Pottstown, PA 19464 Dear Mr. Stick: ADVICE OF COUNSEL October 24, 2008 08 -588 This responds to your letter dated September 17, 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 permit an individual to seek election as a borough council member or borough mayor where said individual is involved in a lawsuit against the borough and some of the borough's elected and appointed officials and employees; and if said individual would be elected as a borough council member or borough mayor, whether the Ethics Act would impose any prohibitions or restrictions upon him with regard to the performance of the duties of his borough position as a result of such litigation. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You state that you are considering seeking election to public office in the Borough of Pottstown ( "Borough "), located in Montgomery County, Pennsylvania. You were previously employed with the Borough. You state that several years ago, your Borough employment was terminated as the result of a whistleblower incident. After you filed a lawsuit against the Borough and the individuals who terminated your employment, you received a financial settlement. You state that you agreed you would not seek reemployment with the Borough. You state that following the aforesaid settlement, some Borough officials and employees filed criminal charges against you. The criminal charges were subsequently dismissed by two Magisterial District Judges. You state that as a result of the aforementioned actions against you, you are currently involved in litigation (hereinafter referred to as the Litigation ") against the Borough and some of its elected and appointed officials and employees. You state that the Litigation seeks financial compensation from the Borough. Stick, 08 -588 October 24, 2008 Page 2 Based upon the above submitted facts, you ask whether the Ethics Act would permit you to seek election as a Borough Council Member or Borough Mayor. 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. 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 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 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 Stick, 08 -588 October 24, 2008 Page 3 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. 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 that generally, where a public official is involved in litigation, matters pertaining to or affecting the litigation or a party to the litigation present a conflict of interest for the public official. See, DeLano, Opinion 88 -008; Golla, Opinion 88 -004; cf., McCullough, Advice 07- 534;— walt, Advice 07 -524; Hiscott, Advices 06 -517 and 06- 517 -S. Even where litigation would not be a factor, a public official would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact the public official, a member of his immediate family, or a business with which he or a member of his immediate family is associated, unless the de minimis exclusion or the class /subclass exclusion contained within the above definition of "conflict" or "conflict of interest" would be applicable. Turning to your specific inquiry, you are advised as follows. The Ethics Act would not prohibit you from seeking election as a Borough Council Member or Borough Mayor. Upon assuming either of the aforesaid positions, you would become a public official subject to the provisions of the Ethics Act, and pursuant to Section 1103(a) of the Ethics Act, in your Borough position, you would generally have a conflict of interest in matters pertaining to the Litigation or individuals who are parties to the Litigation. Stick, 08 -588 October 24, 2008 Page 4 In each instance of a conflict of interest, you 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 each instance of a voting conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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: Based upon the submitted facts that: (1) you were previously employed with the Borough of Pottstown ("Borough "), located in Montgomery County, Pennsylvania; (2) several years ago, your Borough employment was terminated as the result of a whistleblower incident; (3) as a result of filing a lawsuit against the Borough and the individuals who terminated your employment, you received a financial settlement and agreed you would not seek reemployment with the Borough; (4) following the aforesaid settlement, some Borough officials and employees filed criminal charges against you, which charges were subsequently dismissed by two Magisterial District Judges; (5) as a result of the aforementioned actions taken against you, you are currently involved in litigation (hereinafter referred to as the Litigation ") against the Borough and some of its elected and appointed officials and employees; and (6) the Litigation seeks financial compensation from the Borough, you are advised as follows. The Ethics Act would not prohibit you from seeking election as a Borough Council Member or Borough Mayor. Upon assuming either of the aforesaid positions, you would become a public official subject to the provisions of the Ethics Act, and pursuant to Section 1103(a) of the Ethics Act, in your Borough position, you would generally have a conflict of interest in matters pertaining to the Litigation or individuals who are parties to the Litigation. In each instance of a conflict of interest, you 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 each instance of a voting conflict, you would be required to abstain fully 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. 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 Stick, 08 -588 October 24, 2008 Page 5 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