HomeMy WebLinkAbout09-508 WilliamsJack Williams, Councilman
City of Johnstown
360 Corinne Street
Johnstown, PA 15906 -1616
Dear Mr. Williams:
ADVICE OF COUNSEL
February 10, 2009
09 -508
This responds to your letter dated January 5, 2009, by which you requested an
advisory 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 city council
member with respect to voting on the appointment of an attorney to serve as the city
solicitor, when the city council member has sought advice and /or legal representation
from the attorney on potential issues involving the adoption of the city's budget for 2009.
Facts: As a Member of the City Council of the City of Johnstown ( "City "),
Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
Your current term as a City Council Member began on January 1, 2008. On
November 12, 2008, the City Council was presented with the proposed annual
operating budget for 2009. Following work shop sessions and regular and special City
Council meetings, the City's 2009 budget was passed on December 18, 2008. You
state that during the discussion and vote on the budget, you raised concerns and
questions about the lack of required actions, but the vote proceeded nevertheless.
You state that due to your continued concerns regarding the legality of the
adoption of the City's 2009 budget, you contacted Nicolas Banda, Esquire ( "Attorney
Banda ") for information and /or legal representation on the matter. You state that
Attorney Banda could at some point in time be considered for appointment as the City
Solicitor.
Based upon the above submitted facts, you ask whether the Ethics Act would
require you to abstain from participating and voting as to an appointment of Attorney
Banda as the City Solicitor.
Williams, 09 -508
February 10, 2009
Page 2
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 City Council Member, you are 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
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
Williams, 09 -508
February 10, 2009
Page 3
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.
"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.
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.
In each instance of a conflict of interest, the public official /public employee would
be required to abstain fully from participation. The abstention requirement would not be
limited merely to voting, but would extend 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.
Subject to certain statutory exceptions, 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 addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§
1103(b), (c), 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 question presented.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Williams, 09 -508
February 10, 2009
Page 4
Subject to the statutory exceptions to the definition of "conflict" or "conflict of
interest," pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of
interest in matters before you in your capacity as a City Council Member that would
financially impact you, a member of your immediate family, or a business with which you
or a member of your immediate family is associated. The submitted fact that you have
sought legal advice and /or representation from Attorney Banda on potential issues
involving the legality of the adoption of the City's 2009 budget in and of itself would not
form the basis of a conflict of interest under the Ethics Act for you in matters before the
City Council pertaining to Attorney Banda. Cf., Messick, Order 1155.
Accordingly, you are advised that absent some basis for a conflict of interest
such as a private pecuniary benefit to you, a member of your immediate family, or a
business with which you or a member of your immediate family is associated, Section
1103(a) of the Ethics Act would not restrict you from participating and voting as to an
appointment of Attorney Banda as the City Solicitor.
The propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the City's Home Rule
Charter.
Conclusion: As a Member of the City Council of the City of Johnstown ( "City "),
Pennsylvania, you are 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, you would have a conflict of interest in matters before you in
your capacity as a City Council Member that would financially impact you, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated. The submitted fact that you have sought legal advice and /or
representation from Nicolas Banda, Esquire ( "Attorney Banda ") on potential issues
involving the legality of the adoption of the City's 2009 budget in and of itself would not
form the basis of a conflict of interest under the Ethics Act for you in matters before the
City Council pertaining to Attorney Banda. Absent some basis for a conflict of interest
such as a private pecuniary benefit to you, a member of your immediate family, or a
business with which you or a member of your immediate family is associated, Section
1103(a) of the Ethics Act would not restrict you from participating and voting as to an
appointment of Attorney Banda as the City Solicitor.
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
Williams, 09 -508
February 10, 2009
Page 5
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